Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs’ ex parte motions to renew Notices of Action contained false and misleading information, breaching disclosure obligations under Rule 22.05.

• Critical omissions included prior service of a related Notice of Action and ongoing communications with Defendants’ counsel.

• Defendants successfully challenged the renewal orders and requested costs, asserting procedural misconduct.

• The court ultimately granted renewed Notices of Action under Rule 4.04(2) after a rehearing.

• Plaintiffs claimed the Defendants made unsubstantiated and offensive allegations, while Defendants clarified there was no intent to mislead.

• Costs were awarded against each Plaintiff: $2,000 to Hilly Acres and $2,000 to Sobeys per action, payable forthwith.

Background and facts of the case

This case arises from claims related to injuries sustained from the consumption of eggs allegedly provided by Hilly Acres Farm Limited and sold by Sobeys Inc. The plaintiffs—Jennifer Boutilier, Matthew Degaust-White, John White, Amelia Cochrane, Reece White, and Jesse White—initiated legal proceedings seeking damages. They joined Stefanie Degaust-White, who had previously commenced a related action.

On March 19, 2021, Liam O’Reilly of Wagners law firm sent letters of demand on behalf of several individuals including Stefanie Degaust-White, Matthew Degaust-White, John White, Reece White (by litigation guardian Stefanie Degaust-White), and Jesse White (by litigation guardian Stefanie Degaust-White). Later, Hilly Acres and Sobeys were notified of two additional claimants: Amelia Cochrane and Jennifer Boutilier.

Sobeys denied liability in May or June 2021, and Hilly Acres’ insurers denied liability on September 14, 2021. Stefanie Degaust-White commenced action on May 17, 2022, which was served on both defendants. Hilly Acres’ solicitor accepted service. Both Hilly Acres and Sobeys filed Defences on October 14, 2022.

Unbeknownst to the Defendants, the six new actions (subject of the current motions) were filed on December 14, 2022. Between October 2022 and November 2023, there were extensive communications between counsel regarding Stefanie Degaust-White’s claim, which was ultimately settled.

Ex parte motions and procedural history

On January 8, 2024, Mr. O’Reilly filed ex parte motions to renew the Notices of Action for the six new cases. The motions were made ex parte on the basis that the Defendants could not be served. The supporting brief stated that the renewal would allow more time to serve the Defendants and continue settlement discussions.

However, these motions omitted crucial facts: service acceptance by Hilly Acres’ counsel, service on Sobeys, and significant prior communications with defense counsel. The initial ex parte orders renewing the Notices of Action were issued on January 15, 2024.

Defendants sought rehearing of these motions, arguing the renewals were based on misleading information. They requested the orders be set aside, the actions dismissed, and sought lump sum costs of $15,000 each. In an October 22, 2024 judgment, the court found the original motions contained false and misleading information and set aside the renewal orders.

Upon rehearing, the court ruled on December 2, 2024, that the Notices of Action could be renewed under Rule 4.04(2), finding no prejudice to the Defendants that could not be addressed through costs.

Rules discussed

Rule 22.05 of Nova Scotia Civil Procedure requires full and fair disclosure in ex parte motions, including adverse facts known to the party. The court found the Plaintiffs’ motions did not meet this standard. The ruling emphasized that in ex parte situations, where the opposing party is absent, transparency is essential.

Rule 4.04(3) permits ex parte renewal motions unless a judge orders otherwise. Rule 77 governs costs, allowing discretion in awarding costs to do justice between parties. Tariff C applies to motions, though judges may order lump sums (Rule 77.08).

Decision on costs

Justice Coughlan concluded that while the Plaintiffs’ counsel did not intentionally mislead the court, the omissions in the motions amounted to false and misleading information. As a result, the Plaintiffs were ordered to pay costs for causing unnecessary proceedings.

Each Plaintiff was ordered to pay $2,000 to Hilly Acres and $2,000 to Sobeys, as follows:

• Jennifer Boutilier: $2,000 to Hilly Acres and $2,000 to Sobeys

• Matthew Degaust-White: $2,000 to Hilly Acres and $2,000 to Sobeys

• John White: $2,000 to Hilly Acres and $2,000 to Sobeys

• Amelia Cochrane: $2,000 to Hilly Acres and $2,000 to Sobeys

• Reece White: $2,000 to Hilly Acres and $2,000 to Sobeys

• Jesse White: $2,000 to Hilly Acres and $2,000 to Sobeys

These costs were ordered to be paid forthwith.