February 14, 2014

Post Appeal Process in Nova Scotia; Examination in aid on a CA costs order

Filed under: Uncategorized — ruleswatch @ 5:22 pm

Farrar J.A. of the Court of Appeal has given us new insight into post-appeal processes in the province. see Armoyan v. Armoyan, 2014 NSCA 17 (Released 2/14/14). While the decision addresses post-appeal enforcement of a CA costs order, it sets the ground rules for broader questions of the Court’s jurisdiction.

A recent Armoyan decision had awarded the appellant wife in excess of $304,000 costs. She wanted to collect and has issued a discovery for discovery in aid of execution. She tried to serve it. She had no luck.

She moved for an order for substituted service in the Court of Appeal.

Her rationale was that Rule 90.02(1) which allows Supreme Court Rules not inconsistent with the Appeal Court Rule, to be exercised in the Court of Appeal. Hence she reasoned the order was to be issued in the Court of Appeal.

The motion was denied.

Justice Farrar ruled that the Rules contemplate that jurisdiction for the “ enforcement of this Court’s orders” “ lies with the Supreme Court through the applications of Rules 90.50(1) and 90.53(1)” The decision means, at least, discovery in aid in respect of a Court of Appeal order is to be heard in the Supreme Court under Rule 90.

Specifically, the judge reasoned from Rule 90.50(1)(b). That Rule directs the Court of Appeal Registrar to immediately, upon that Court’s order for judgment being issued, to deliver a copy to the court appealed from .

Once this delivery occurs, the reasoning continued, Rule 90.53(1) provides that “…all subsequent proceedings may be taken as if the certified order had been granted by the court appealed from.”

And hence, Justice Farrar concluded, the costs order is to be treated as though it were an order of the Supreme Court for subsequent enforcement proceedings unless… there is “for example” to be an effort to amend the order or appeal it.

The broader procedural take aways from the decision in respect of Court of Appeal jurisdiction may be these:

1. Look at the rules to make sure that there is nothing particularly governing the step that you want to take;
2. When looking at Rule 90.05 don’t just assume that if there is no explicit contradiction, the Supreme Court will apply;
3. Rather, look to read the rules in context and satisfy yourself that there is no necessary implication of another sub-rule of Rule 90 that precludes your proposed step;
4. Only then, count on Rule 90.05 as your pivot point.

And stay tuned. Justice Farrar specifically expects the Suprreme Court judge expected to t deal with a new motion for substituted service, toa ddress the question of whether substituted service of a subpoena for examination in aid can be ordered at all!


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