Wolfridge Farm Limited v. Farm Credit Canada, 2016 NSCA 19

Nova Scotia Court of Appeal Citation: Wolfridge Farm Limited v. Farm Credit Canada , 2016 NSCA 19 Date: 20160318 Docket: CA 443239 and CA 443918 Registry: Halifax Between: Wolfridge Farm Limited Appellant v. Farm Credit Canada, John Early and Lydia Early Respondent Judge: Bryson, J.A. Motion Heard: March 17, 2016, in Halifax, Nova Scotia in Chambers Held: Motion for security for costs granted; security for costs to be paid in the amount of $6,000.00. Motion for registration under the Corporations Registration Act dismissed. Counsel: John T. Early, III, agent for the appellant Jeffrey P.

Flinn, for the respondent Decision: [ 1 ] Farm Credit Canada applies for security for costs against Wolfridge Farm Limited in two appeals which will be heard together on May 25. Farm Credit also seeks an order compelling Wolfridge to register under the Corporations Registration Act . Although Wolfridge was originally a Nova Scotia company, it has been exported to Delaware. [ 2 ] Farm Credit has submitted very extensive affidavit evidence in support of its motion in each proceeding. Wolfridge has filed no evidence in reply, but has submitted a brief from its Agent, John T.

Early, III. [ 3 ] I will not review Farm Credit’s evidence in detail. I am satisfied that it discloses that special circumstances exist because there is an objectively justified concern that if Farm Credit is successful in defending these appeals, it will not recover its costs, ( Ketler v. Nova Scotia (Attorney General) , 2016 NSCA 15 ¶ 10 ). I am also satisfied that Wolfridge can post security. It is a frequent litigant in our courts and does not appear to lack resources when required, ( Ketler , and Campbell v. Turner-Lienaux , 2001 NSCA 122 ¶ 35 ). [ 4 ] Mr.

Early urges I should do nothing because Wolfridge is now in

Chapter 11 bankruptcy proceedings in the United States. It is being reorganized and “should emerge as a going concern”. Mr. Early says that Nova Scotia has given “foreign recognition” to the

Chapter 11 proceedings. He refers to the decision of Justice LeBlanc in Wolfridge Farm Ltd. (Re) , 2015 NSSC 168 . [ 5 ] In fact, the recognition accorded Wolfridge,

Chapter 11 proceedings is qualified. Justice LeBlanc declined to recognize the

Chapter 11 proceedings as a foreign main proceeding which has implications for what will or will not be recognized in Nova Scotia. With respect to Farm Credit’s proceedings, Justice LeBlanc commented: [54] I also conclude, on the basis of the argument described above, that FCC’s foreclosure proceeding would be exempt in any event, pursuant to s. 271(3) of the BIA. In addition, even if I were to recognize the foreign proceeding as a main proceeding, this would not extend to any steps taken in the Bonang foreclosure proceeding. [ 6 ] Assuming that Wolfridge’s appeals in Nova Scotia are authorized by United States

Chapter 11 proceedings, no authority has been cited that would impede this Court’s jurisdiction to order security in a proper case. As a general principle, it would be wrong for any party – let alone a foreign corporation – to enjoy the benefits of the Court’s process while claiming immunity from the obligations which invoking that process entails.

[ 7 ] Farm Credit seeks costs of $10,000.00 and explains its request for this amount by the time and expense that will be involved in responding to these two appeals which together recite more than 42 grounds. [ 8 ] I agree that so many grounds make counsel’s work more onerous. But the appeals are set for only half a day.

Accordingly, I order that Wolfridge post security for costs of $3,000.00 with respect to each appeal – $6,000.00 in total – by 4:30 p.m. on April 6, 2016, failing which Farm Credit will be at liberty to apply to dismiss the appeals without notice to Wolfridge. [ 9 ] There is no authority for requiring Wolfridge to register under the Corporations Registration Act . If that failure to register allows a motion to dismiss, Farm Credit can bring that motion. But the present motion to compel Wolfridge to register is dismissed. [ 10 ] In his written submissions, Mr.

Early has cast aspersions of sharp practice and other discreditable conduct against counsel for Farm Credit. Personal disparagement of an opponent neither advances one’s cause nor distinguishes one’s advocacy. Bryson, J.A.