As promised, here are the Reasons of Justice Jayne Fergusson in refusing the application of Nelson Barbados Group Limited for leave to appeal the decision of Shaughnessy J. in which he refused to release for general distribution the videotapes of cross-examinations in Barbados of, among others, Sir David Simmons and those in Toronto of Iain Deane and John Knox.Subscribe to get the latest posts sent to your email.
What is next in this matter?
Next, David? Well, there is a conference call with the Judge (Shaughnessy this time) on, January 5.
On January 5, counsel and the judge will agree on the date of the hearing of the jurisdictional motion for EITHER the week commencing February 23 OR the week commencing April 6.
My personal feeling is that the choice of dates will be largely down to the defendants’ counsel as it is the defendants who are being prejudiced by the delay. The judge has made it clear that ALL counsel must leave these two dates open for the hearing.
If the Court rules that Ontario lacks jurisdiction, then the Plaintiff might appeal the decision, but I think that unlikely BECAUSE of the issue of security for costs.
For those of your readers who do not know what security for costs means, if you lose a case (or in this instance a motion) and you want to appeal it, there is every chance that the winning side will require that you provide security for their costs – in other words, you must post either cash or bond with the court in the amount of the agreed or taxed costs multiplied by 2 for the appeal. If you do not post that money, then the appeal will be dismissed and unable to be revived and that is the end of the process.
Normally, in Canada, this is straightforward and the actual costs a losing side will have to pay is about 40% of the actual costs incurred. HOWEVER, having seen the factum of the defendants, that BU posted, it seems to me that they are applying for full costs and will, likely, get them.
I estimate that costs in this matter now top US$3 million, so, if all goes as I predict, Nelson/Madge/Allard will need to post with the court in cash or bonds the sum of approximately US$6 million.
I am also advised that the Supreme Court of Barbados has served notice on all parties and will hear the fraud action brought by Iain Deane against Madge Knox to have the transfer and charging of her shares in Kingsland reversed. That trial starts, I am told, January 21. While, if Iain is successful, it will not impact on the jurisdictional motion in Canada or the outcome of that – it is not relevant to jurisdiction – it is none-the-less an important point to be considered in the arguments at any hearing of a motion for costs. It is also highly relevant if Nelson decides to file any other actions in other provinces in Canada as, to do that, Nelson must have standing and without any claim on those shares belonging to Madge, it has none.
So, David, I hope that helps.
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