Executive Summary: Key Legal and Evidentiary Issues

• Defendants moved to strike portions of the plaintiffs' pleadings in two consolidated Nova Scotia Supreme Court actions for lacking particulars, containing scandalous content, and pleading against non-parties.
   
• Justice Norton struck numerous specific passages across both Statements of Claim while granting the plaintiffs leave to amend the conspiracy and defamation allegations with proper particulars.
   
• Costs of $6,500 were awarded to the moving defendants as a lump sum following unsuccessful settlement of costs by agreement.
   
• The plaintiffs separately sought a stay of the main proceeding or the recusal of Justice Norton, citing an unrelated bias allegation raised in a separate action against a different defendant.
   
• Both the stay and recusal motions were dismissed, with the court finding no reasonable apprehension of bias and no basis under the applicable legal tests.
   
• A later motion to disqualify opposing counsel and his firm was also dismissed after the court found the evidence fell short of the compelling-reasons threshold required to interfere with a party's choice of counsel.
   

Facts of the case

The underlying dispute arises from the dissolution of a law firm referred to as Mac, Mac & Mac ("MMM"), in which plaintiff Donn Fraser was a partner through his professional corporation, DLF Law Practice Incorporated ("DLF"). Several former MMM partners subsequently joined a different firm, Patterson Law. The plaintiffs allege that the dissolution was unlawfully orchestrated by the former MMM partners, causing them substantial loss, and they claim against Patterson Law and certain of its partners for conspiracy and for accessory liability in assisting a fiduciary breach. Two related actions (PIC No. 510894 and PIC No. 524099) were consolidated into the main proceeding, PIC No. 525281, by order dated July 10, 2024, with a separate action, PIC No. 521514, proceeding against defendant Julie MacPhee alone for defamation arising from internal MMM communications.

Justice Scott C. Norton was appointed case management judge for these proceedings. A related but separate action against a non-party mediator, Bruce Tait MacIntosh, generated an appeal to the Nova Scotia Court of Appeal in which the plaintiffs alleged a reasonable apprehension of bias against Justice Norton arising from his rulings in that file. Relying on that pending appeal, the plaintiffs moved in the present proceeding for a stay pending the Court of Appeal's ruling, or alternatively for Justice Norton's recusal. Separately, a group of defendants (the "Moving Defendants") brought a motion to strike numerous paragraphs of the plaintiffs' pleadings in both PIC No. 525281 and PIC No. 521514 as lacking required particulars, being scandalous, or improperly targeting non-parties. Following that decision, the parties could not agree on costs, requiring a further costs ruling. In a later, separate development, the plaintiffs moved to remove and disqualify Gavin Giles, K.C., and his firm, McInnes Cooper, as counsel for several defendants.

Policy and legislative provisions at issue

The motion to strike engaged the Nova Scotia Civil Procedure Rules governing pleadings, including Rules 4.02(4) and 38.02(1) (notice of claims), Rule 38.02(2) (conciseness and material facts), Rule 38.02(3) (prohibition on pleading evidence), Rule 38.03(3) (heightened particulars for allegations such as fraud, misappropriation, or malice), and Rules 88.01 and 88.02 (striking scandalous, frivolous, or abusive pleadings). The stay and recusal motion engaged the court's inherent jurisdiction to control its own process, as confirmed by section 41(e) of the Judicature Act, RSNS 1989, c. 240, together with Civil Procedure Rules 2.03 and 26B governing case management directions, and the common law test for reasonable apprehension of bias. Costs on the strike motion were assessed under the general framework of the Rules and Tariffs applicable to interlocutory motions, which permit the court to depart from tariff costs and award a lump sum in appropriate circumstances. The motion to remove counsel engaged the court's inherent jurisdiction to disqualify counsel for conflicts of interest, informed by the framework in MacDonald Estate v. Martin, and Civil Procedure Rule 39.04(1) and (2) governing permissible affidavit content.

Reasoning and analysis

On the motion to strike, Justice Norton found that most of the plaintiffs' pleadings, while not exemplary drafting, adequately informed the defendants of the case they had to meet. However, he struck the conspiracy allegations in both the main Statement of Claim and its incorporated schedules for failing to identify the alleged conspirators, the terms of any agreement, the overt acts of each conspirator, or particularized damages, while granting leave to replead these allegations with the required detail and without incorporation by reference to prior pleadings. He similarly found the defamation allegations deficient for failing to set out the impugned words verbatim, again granting leave to amend. Numerous other specific passages were struck as scandalous, irrelevant, or directed at non-parties, including allegations referencing a defendant's mental health. The judge declined to strike claims on the basis of alleged duplication across proceedings, finding the factual bases of the defamation claims in the two actions were not shown to overlap. On costs, the judge accepted that the Moving Defendants were substantially successful and, considering the complexity created by the pleadings' cross-referencing structure, awarded a lump sum rather than strict tariff costs.

On the stay and recusal motion, Justice Norton held that the claims in this proceeding and in the separate MacIntosh action were factually distinct, connected only by his common appointment as case management judge, and that a stay would not prevent duplication of resources but would unfairly prejudice the defendants through delay. Applying the well-established reasonable apprehension of bias test, he found no cogent evidence displacing the strong presumption of judicial impartiality, noting that the plaintiffs' concerns related to rulings under appeal in a separate, unrelated file. On the later motion to remove counsel, Justice Norton first ruled on the admissibility of portions of the plaintiff's affidavit, giving no weight to numerous paragraphs found to contain irrelevant, scandalous, or vexatious content, including allegations of mental health issues and misconduct unrelated to the specific conduct of counsel at issue. On the merits, he applied the established multi-factor test for counsel disqualification and found no evidence of a prior conflicting retainer, an improperly close relationship between counsel and the parties, or any other compelling reason meeting the high threshold required to interfere with a party's choice of counsel.

Ruling and overall outcome

Justice Norton struck the identified portions of the plaintiffs' pleadings while granting leave to amend the conspiracy and defamation allegations with proper particulars, and separately ordered the plaintiffs' associated companies to pay the Moving Defendants a lump sum of $6,500 in costs on that motion. He dismissed both the motion for a stay and the motion for recusal without costs, finding no basis to depart from the ordinary course of proceedings. In the subsequent decision, he dismissed the plaintiffs' motion to remove and disqualify Gavin Giles, K.C., and McInnes Cooper as counsel, again without a costs order beyond directing that unresolved costs submissions be filed within two weeks if agreement could not be reached. Across the four decisions, the defendants were the successful parties in three of the four motions, with the fourth (2025 NSSC 71) resulting in a split outcome; the sole monetary award was the $6,500 lump sum costs order in favour of the Moving Defendants in 2025 NSSC 113.