Ballam Insurance Services Limited v. Fundy Computer Services Ltd., 2023 NSSC 36

SUPREME COURT OF Nova Scotia Citation: Ballam Insurance Services Limited v. Fundy Computer Services Ltd. , 2023 NSSC 36 Date: 20230202 Docket: Halifax , No. 356720 Registry: Halifax Between: Ballam Insurance Services Limited (as Assignor) and J.F.B. Holdings Limited (as Assignee) Plaintiffs v. Fundy Computer Services Ltd. and Atlantic Datasystems Inc. Defendants Judge: The Honourable Justice Gail L. Gatchalian Heard: February 2, 2023, in Halifax, Nova Scotia Counsel: Derek B. Brett, for the Plaintiffs Colin D. Piercey and Manon A.M.

Landry, for the Defendants By the Court: Introduction [ 1 ] In a decision dated October 3, 2022, I dismissed the motion of the Defendants, Fundy Computer Services Ltd. and Atlantic Datasystems Inc. (“Fundy”), for an order dismissing this Action for want of prosecution under Civil Procedure Rule 82.18: Ballam Insurance Services Limited v. Fundy Computer Systems Ltd. , 2022 NSSC 277 . However, I directed the Plaintiff, Ballam Insurance Services Limited (“Ballam”), to fulfill its outstanding discovery undertakings within two months of the date of the decision. [ 2 ] Ballam did not comply with my order.

Ballam now seeks to vary my order under Civil Procedure Rules 78.08(

c) and 82.22(1) (

a) to extend the deadline for it to fulfill its undertakings. [ 3 ] After my decision, and in accordance with my direction, Ballam filed a further amended Notice of Action adding J.F.B. Holdings Limited (“JFB”), to whom all rights and claims of Ballam had been assigned, as a party. For ease of reference, I will refer to the Plaintiffs herein as “Ballam.” [ 4 ] Under Rule 82.22(1)(a), a party may make a motion to vary an order to extend time under Rule 78. Under Rule 78.08(c), a judge may extend the time for doing something required to be done by an order that provides a deadline.

Ballam says that its new counsel, Mr. Brett, formally took carriage of this law suit on December 30, 2022, and that Mr. Brett and his firm have made efforts since then to assist Ballam in fulfilling its outstanding undertakings. Mr. Brett believes that they will require another two months from the date of this hearing to fulfill the undertakings. [ 5 ] Fundy objects, and seeks an order dismissing the Action as an abuse of process under Civil Procedure Rule 88.02(1)(a).

Fundy says that Ballam deliberately ignored my order and provided no explanation for why, thereby rendering futile the judicial process, and demonstrating that Ballam has no intention of bringing the matter to a conclusion: see Ocean v. Economical Mutual Insurance Company , 2013 NSSC 14 at paras.37, 39 and 40-42. [ 6 ] I have the discretion to vary my order to extend the deadline for Ballam to fulfill its outstanding undertakings. I must exercise that discretion judicially.

The parties agreed that, in order to determine whether I should exercise the discretion, I should consider: • The efforts of Ballam to comply with my order. • The prejudice to Ballam if I refuse to extend the deadline. • The prejudice to Fundy if I extend the deadline.

• The impact of any decision I might make on the administration of justice. • Balancing the interests of the parties, whether it is in the interests of justice to grant the extension. Efforts of Ballam to Comply [ 7 ] Mr. Brett states in his affidavit that a certified digital evidence investigator was retained on January 6, 2023, and that the investigator has already taken action to order the necessary parts to unlock and obtain any applicable documentation existing on an outdated computer hard drive. The other steps taken by Mr.

Brett and his law firm, on behalf of Ballam, are described in general terms: • Upon assuming duties as Ballam’s counsel, Mr.

Brett immediately commenced review of documents relating to the issue of unsatisfied discovery undertakings, dating back to approximately June of 2014. • This included reviewing this Court’s decision of October 3, 2022, and the parties’ briefs. • He commenced efforts, in good faith, designed to satisfy the outstanding undertakings. • His law office is making a serious, dedicated effort to facilitate the production of the outstanding undertakings. • He will require an additional 60 days to identify and disclose the requested documents. [ 8 ] Mr.

Brett’s affidavit does not discuss the time period between October 3, 2022, the date of my decision, and December 30, 2022, the date he formally took carriage of the file. Prejudice to Ballam if I Refuse to Extend the Deadline [ 9 ] If I refuse to extend the deadline for Ballam to fulfill its undertakings, the consequences could be extreme. Fundy might rely on Ballam’s failure to fulfill its undertakings by the court-ordered deadline in order to support a motion to dismiss the Action.

The Prejudice to Fundy if I Extend the Deadline [ 10 ] The consequences for Fundy if I extend the deadline could also be very significant. Assuming that Ballam complies with an extended deadline, it will provide the answers to the undertakings by early April, 2023. The deadline to file expert reports is May 8, 2023. This would give Fundy approximately one month to provide the information it receives from Ballam to its own expert or experts and have a report or reports turned around in time for the deadline. The Finish Date is November 8, 2023, six months after the deadline for expert reports.

The trial is scheduled to start in February of 2024. An extension of the deadline for Ballam to fulfill its undertakings will therefore jeopardize the trial dates. Fundy will potentially be facing a trial more than fourteen years after the events that gave rise to the action. The Interests of Justice [ 11 ] I have to weigh, on the one hand, Ballam’s interest in having the Action determined on its merits, and on the other hand, Fundy’s interest in a just, speedy and inexpensive determination of this proceeding: see Civil Procedure Rule 1.01 .

I must also take into account the impact of my decision on the administration of justice. [ 12 ] The following factors weigh against exercising my discretion to vary my order: • The Action concerns a dispute about events that took place in 2010 and 2011. • Discoveries took place in June of 2014, eight-and-a-half years ago. • In my October 3, 2022 decision, I found that Ballam’s delay in moving this action forward has been inordinate. • In my decision, I found that the vast majority of the delay from early 2017 to the date of my decision has been inexcusable. • Approximately half of Ballam’s 37 discovery undertakings remain outstanding. • In my October 3, 2022 decision, I found that Ballam had not satisfactorily explained why its discovery undertakings remain outstanding. • Civil Procedure Rule 18.16(6) requires that a party who undertakes to do anything in the course of a discovery must perform the undertaking no more than sixty days after the day the undertaking is made, unless the parties agree or a judge directs otherwise. • In my decision, I stated that “B allam must now take concrete steps to move this matter forward in a timely manner.” • I directed Ballam to fulfill those undertakings within two months of my decision, i.e.

December 5, 2022. • I conclude, based on the lack of any evidence from Ballam about its efforts between October 3, 2022 and December 30, 2022, that it made no reasonable effort to comply with my order for a period of almost three months. • Ballam has provided no reasonable excuse for its failure to comply with my order in the three months following my decision. • It now seeks what amounts to a four month extension to the deadline in my order, on top of what I already found to be an inordinate and inexcusable delay.

• If I were to grant the extension request, the trial dates will be in jeopardy. • Granting the extension request will not promote t he just, speedy and inexpensive determination of this Application. [ 13 ] The following factors weigh in favour of exercising my discretion to vary my order: • Ballam has taken recent steps to fulfill its undertakings. • A further two months, in the context of the overall delay, is short. • Ballam risks dismissal of its Action if I do not vary my Order. [ 14 ] Taking all of the above factors into account, and balancing the interests of the parties, I conclude, by a small margin, that it would be in the interests of justice to grant Ballam one final opportunity to fulfill the outstanding undertakings.

However, it would, in my view, bring the administration of justice into disrepute if there were not serious consequences should Ballam not comply with an extended deadline. Its failure to fulfill the undertakings by December 5, 2022 was not simply a missed deadline. It was a failure to comply with a court order. [ 15 ] Counsel for Ballam urged the court to consider a form of case management, with required updates from Ballam, rather than setting out consequences if it fails to meet the new deadline. I decline to do so.

It is Ballam’s responsibility to comply with the court’s direction. [ 16 ] I will vary my order to extend the deadline for Ballam to fulfill its outstanding undertakings. It will have until April 3, 2023 to do so, failing which Fundy may bring a further motion to dismiss the Action. See Hatfield v. Intact Insurance Company , 2016 NSSC 150 at para.35. Abuse of Process [ 17 ] In my view, Fundy has not succeeded, at this point, in demonstrating that Ballam’s conduct is contemptuous and deliberate or that Ballam has no intention of bringing the matter to a conclusion.

I have already decided that it is in the interests of justice to grant Ballam one further opportunity to fulfill its outstanding undertakings. I decline to exercise my discretion to dismiss the Action as an abuse of process.

Conclusion [ 18 ] An order shall issue on the following terms: • The deadline for Ballam to fulfill its undertakings is April 3, 2023. • If Ballam fails to fulfill its undertakings by April 3, 2023, Fundy may file a further motion to dismiss the Action at any time after that date. [ 19 ] If the parties cannot agree on the costs of this motion, I will receive written submissions from them within two weeks of this decision. Gatchalian, J.