Executive Summary: Key Legal and Evidentiary Issues

• The appeal concerned whether a chambers judge erred in striking the appellants' statement of defence and counterclaim.
   
• Justice Coughlan of the Supreme Court of Nova Scotia had found the appellants' conduct to be contumacious and an abuse of process.
   
• Deliberate breaches of court orders and a persistent failure to communicate with opposing counsel formed the basis of the lower court's findings.
   
• Continuation of the same problematic conduct after an earlier motion to strike was dismissed weighed heavily against the appellants.
   
• A unanimous panel of the Court of Appeal found no error in the judge's application of the law or his factual findings.
   
• Costs of $5,000, inclusive of disbursements, were ordered against the appellants following dismissal of the appeal.
   

Facts of the case

This appeal arose from an action commenced in March 2017 between the appellants, John Dale Swift (also known as Dale John Swift), 3241573 Nova Scotia Limited, and 3222742 Nova Scotia Limited, and the respondent, David Carmichael Johnathan Wallace. Justice C. Richard Coughlan of the Supreme Court of Nova Scotia struck the appellants' statement of defence and counterclaim and entered judgment in favour of the respondent (the plaintiff below), with damages and remedies to be assessed at a later date. Justice Coughlan's underlying reasons are reported at 2025 NSSC 139. The appellants brought this discretionary order before the Nova Scotia Court of Appeal, arguing it should be overturned.

Policy and legislative provisions at issue

No specific statutory or regulatory provisions are identified in the decision. Rather, the matter turned on the court's discretionary authority to strike pleadings where a party's conduct is found to be contumacious and to amount to an abuse of the court's processes. The chambers judge characterized the appellants' conduct as "a pattern of behaviour which has continued over the whole course of this proceeding," concluding that it "meets the high bar required to strike the Defendants' pleadings."

Reasoning and analysis

The chambers judge found that the appellants had breached court orders and had failed to communicate properly with respondent's counsel, and that this conduct was deliberate and long-standing. He noted that an earlier motion to strike had been dismissed, yet the appellants did not adjust their behaviour afterward, which undermined the credibility of any promises about their future conduct. On that basis, the judge concluded the appellants' conduct was contumacious and constituted a deliberate flouting of the law. On appeal, the panel—Van den Eynden, Scanlan, and Beaton, JJ.A.—held that to succeed, the appellants needed to establish that the judge erred, and unanimously found they had not done so. The panel determined that no error was apparent on the record, that the judge identified and applied the correct legal principles, and that his factual findings were well grounded in the record before him.

Ruling and overall outcome

The Court of Appeal dismissed the appeal, upholding the order striking the appellants' statement of defence and counterclaim. The respondent, David Carmichael Johnathan Wallace, was the successful party. The appellants were ordered to pay costs to the respondent in the amount of $5,000, inclusive of disbursements. The decision does not specify the amount of damages ultimately owed, as those remain to be assessed at a later date per the underlying order.