Bank of Nova Scotia v. Vansnick

Date: 19980519 Docket: C.A. 143488

NOVA SCOTIA COURT OF APPEAL

Hart. Jones. Freeman, JJ.A.

BETWEEN:

RICHARD A. VANSNICK, PAULA E. IRVING

AND WILLIAM ROY SMITH

Appellants

-and-

THE BANK OF NOVA SCOTIA

Respondent

Anthony J. Morley, Q.C.

for the Appellant

Robert G. Belliveau, Q.C.

for the respondent

Appeal Heard: May 19, 1998

Judgment Delivered: May 19, 1998

THE COURT: The appeal is dismissed with costs per oral reasons for judgment of Freeman, J.A.; Hart and Jones, JJ.A., concurring.

FREEMAN, J.A.:

This is an appeal from a Chambers decision of Justice Scanlan of the Supreme Court of Nova Scotia refusing an application by the defendant appellants to dismiss the plaintiff respondent's action to void the effect of certain conveyances to them.

Richard M. VanSnick, an Amherst, N.S. businessman, is a defendant in the Bank's action but not a party to this appeal. In 1992 he consented to judgment in favour of the Bank of Nova Scotia in an action brought on a reimbursement agreement resulting from a letter of credit the Bank had issued so he could participate as one of the Canadian "names" of Lloyds of London. Lloyds had demanded payment and collected from the Bank.

The Bank then brought the present proceeding against Mr. VanSnick, his son Richard A. VanSnick, his common law wife Paula E. Irving, his friend William Roy Smith and a company with which he was alleged to be connected, VanSnick Property Management Limited.

The Bank alleged that Mr. VanSnick had made a number of conveyances without consideration to avoid obligations to creditors, including Mr. VanSnick's two former wives, to whom he was indebted for maintenance. The conveyances were made in 1989 and 1990 and included his home, cottage, furnishings and shares in his businesses. The Bank sought to have the conveyances declared void against itself. The three appellants filed a defence October 1, 1992. Mr. VanSnick and the company filed a separate defence about the same time.

At Mr. VanSnick's request, the Bank agreed to await the outcome of litigation in Ontario between some Lloyd's names and their banks. Shortly after the Ontario decision came down, the Bank gave notice of intention to proceed dated February 24, 1997, to all defendants. The three appellants claimed they had been prejudiced by the delay and applied under Civil Procedure Rule 28.13 for an order dismissing the Bank's claim against them for want of prosecution.

Justice Scanlan held that the applicants had not satisfied the burden upon them of proving inordinate delay and substantial prejudice. Applying the two-part test in Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143, he considered that the delay had been explained to his satisfaction, and that the evidence did not disclose material or substantial prejudice to the defendants. Given the complexity of the underlying issues, the delay was not so long as to give rise to a presumption of prejudice. He cited Canada v. Foundation Company (1990), 99 N.S.R. (2d) 237 and Moir v. Landry (1991), 104 N.S.R. (2d) 281.

The position of this court in matters such as the present one is well known. After referring to the relevant cases Justice Flinn summed it up in Global Petroleum Corp. et al. v. CBI Industries Inc. et al. (1997), 158 N.S.R. (2d) 201 (C.A.):

This is an interlocutory appeal, involving a discretionary order, and this court has repeatedly stated that it will not interfere unless wrong principles of law have been applied or a patent injustice would result.

The appeal is dismissed with costs which are fixed at $750.00 inclusive of disbursements payable forthwith.

Freeman, J.A.

Concurred in:

Hart, J.A.

Jones, J.A.

Page 267

1992 S.H. No. 83398

IN THE SUPREME COURT OF NOVA SCOTIA

BETWEEN:

THE BANK OF NOVA SCOTIA

PLAINTIFF

-and-

RICHARD M. VANSNICK, RICHARD A. VANSNICK,

PAULA E. IRVING, WILLIAM ROY SMITH and

VANSNICK PROPERTY MANAGEMENT LIMITED

DEFENDANTS

ORDER

BEFORE THE HONOURABLE JUSTICE TED SCANLAN IN CHAMBERS

UPON .HEARING READ the application of the Defendants Richard A. VanSnick, Paula E. Irving and William Roy Smith to dismiss this proceeding for want of prosecution;

AND UPON HEARING READ the Affidavits filed on behalf of all parties;

NOW UPON HEARING Anthony J. Morley, Q.C., the solicitor for the applicants, Douglas B. Shatford, Q.C., the solicitor for the Defendant Richard M. VanSnick, and Robert G. Belliveau, Q.C., the solicitor for the Plaintiff;

NOW UPON MOTION:

IT IS ORDERED that the application is hereby dismissed;

Page 268

IT IS FURTHER ORDERED that the costs of the application will be Plaintiff s costs in the cause.

DATED at Amherst, Nova Scotia, this day of December, 1997.

PROTHONOTARY

CONSENTED TO AS TO FORM:

Anthony J. Morley, Q.C.

Archibald Morley

P.O. Box 548

55 Church Street

Amherst, NS B4H 4A1

Solicitor for the Defendants

Richard A. VanSnick, Paula E. Irving and William Roy Smith

Douglas B. Shatford, Q.C.

Creighton & Shatford

14 Electric Street

P.O. Box 398

Amherst, NS B4H 3Z5

Solicitor for the Defendant Richard M. VanSnick

Robert G. Belliveau, Q.C.

McInnes Cooper & Robertson

1601 Lr. Water Street

P.O. Box 730 ,

Halifax, NS B3J 2V1

Solicitor for the Plaintiff

(834160)

C.A. No. 143948

NOVA SCOTIA COURT OF APPEAL

BETWEEN:

RICHARD A. VANSNICK, PAULA E.

IRVING AND WILLIAM ROY SMITH

Appellants

- and -

THE BANK OF NOVA SCOTIA

Respondent

REASONS FOR JUDGEMENT BY:

Freeman, J.A.

(Orally)

	Nova Scotia >> Nova Scotia Court of Appeal >>
	Citation: Bank of Nova Scotia v. Vansnick Date: 1998-05-19 Docket: C.A.143488 URL: http://www.canlii.org/ns/cas/nsca/1998/1998nsca10062.html
	Date: 19980519 Docket: C.A. 143488 NOVA SCOTIA COURT OF APPEAL Hart. Jones. Freeman, JJ.A. BETWEEN: RICHARD A. VANSNICK, PAULA E. IRVING AND WILLIAM ROY SMITH Appellants -and- THE BANK OF NOVA SCOTIA Respondent Anthony J. Morley, Q.C. for the Appellant Robert G. Belliveau, Q.C. for the respondent Appeal Heard: May 19, 1998 Judgment Delivered: May 19, 1998 THE COURT: The appeal is dismissed with costs per oral reasons for judgment of Freeman, J.A.; Hart and Jones, JJ.A., concurring. FREEMAN, J.A.: This is an appeal from a Chambers decision of Justice Scanlan of the Supreme Court of Nova Scotia refusing an application by the defendant appellants to dismiss the plaintiff respondent's action to void the effect of certain conveyances to them. Richard M. VanSnick, an Amherst, N.S. businessman, is a defendant in the Bank's action but not a party to this appeal. In 1992 he consented to judgment in favour of the Bank of Nova Scotia in an action brought on a reimbursement agreement resulting from a letter of credit the Bank had issued so he could participate as one of the Canadian "names" of Lloyds of London. Lloyds had demanded payment and collected from the Bank. The Bank then brought the present proceeding against Mr. VanSnick, his son Richard A. VanSnick, his common law wife Paula E. Irving, his friend William Roy Smith and a company with which he was alleged to be connected, VanSnick Property Management Limited. The Bank alleged that Mr. VanSnick had made a number of conveyances without consideration to avoid obligations to creditors, including Mr. VanSnick's two former wives, to whom he was indebted for maintenance. The conveyances were made in 1989 and 1990 and included his home, cottage, furnishings and shares in his businesses. The Bank sought to have the conveyances declared void against itself. The three appellants filed a defence October 1, 1992. Mr. VanSnick and the company filed a separate defence about the same time. At Mr. VanSnick's request, the Bank agreed to await the outcome of litigation in Ontario between some Lloyd's names and their banks. Shortly after the Ontario decision came down, the Bank gave notice of intention to proceed dated February 24, 1997, to all defendants. The three appellants claimed they had been prejudiced by the delay and applied under Civil Procedure Rule 28.13 for an order dismissing the Bank's claim against them for want of prosecution. Justice Scanlan held that the applicants had not satisfied the burden upon them of proving inordinate delay and substantial prejudice. Applying the two-part test in Minkoff v. Poole and Lambert (1991), 101 N.S.R. (2d) 143, he considered that the delay had been explained to his satisfaction, and that the evidence did not disclose material or substantial prejudice to the defendants. Given the complexity of the underlying issues, the delay was not so long as to give rise to a presumption of prejudice. He cited Canada v. Foundation Company (1990), 99 N.S.R. (2d) 237 and Moir v. Landry (1991), 104 N.S.R. (2d) 281. The position of this court in matters such as the present one is well known. After referring to the relevant cases Justice Flinn summed it up in Global Petroleum Corp. et al. v. CBI Industries Inc. et al. (1997), 158 N.S.R. (2d) 201 (C.A.): This is an interlocutory appeal, involving a discretionary order, and this court has repeatedly stated that it will not interfere unless wrong principles of law have been applied or a patent injustice would result. The appeal is dismissed with costs which are fixed at $750.00 inclusive of disbursements payable forthwith. Freeman, J.A. Concurred in: Hart, J.A. Jones, J.A. Page 267 1992 S.H. No. 83398 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: THE BANK OF NOVA SCOTIA PLAINTIFF -and- RICHARD M. VANSNICK, RICHARD A. VANSNICK, PAULA E. IRVING, WILLIAM ROY SMITH and VANSNICK PROPERTY MANAGEMENT LIMITED DEFENDANTS ORDER BEFORE THE HONOURABLE JUSTICE TED SCANLAN IN CHAMBERS UPON .HEARING READ the application of the Defendants Richard A. VanSnick, Paula E. Irving and William Roy Smith to dismiss this proceeding for want of prosecution; AND UPON HEARING READ the Affidavits filed on behalf of all parties; NOW UPON HEARING Anthony J. Morley, Q.C., the solicitor for the applicants, Douglas B. Shatford, Q.C., the solicitor for the Defendant Richard M. VanSnick, and Robert G. Belliveau, Q.C., the solicitor for the Plaintiff; NOW UPON MOTION: IT IS ORDERED that the application is hereby dismissed; Page 268 IT IS FURTHER ORDERED that the costs of the application will be Plaintiff s costs in the cause. DATED at Amherst, Nova Scotia, this day of December, 1997. PROTHONOTARY CONSENTED TO AS TO FORM: Anthony J. Morley, Q.C. Archibald Morley P.O. Box 548 55 Church Street Amherst, NS B4H 4A1 Solicitor for the Defendants Richard A. VanSnick, Paula E. Irving and William Roy Smith Douglas B. Shatford, Q.C. Creighton & Shatford 14 Electric Street P.O. Box 398 Amherst, NS B4H 3Z5 Solicitor for the Defendant Richard M. VanSnick Robert G. Belliveau, Q.C. McInnes Cooper & Robertson 1601 Lr. Water Street P.O. Box 730 , Halifax, NS B3J 2V1 Solicitor for the Plaintiff (834160) C.A. No. 143948 NOVA SCOTIA COURT OF APPEAL BETWEEN: RICHARD A. VANSNICK, PAULA E. IRVING AND WILLIAM ROY SMITH Appellants - and - THE BANK OF NOVA SCOTIA Respondent REASONS FOR JUDGEMENT BY: Freeman, J.A. (Orally)