SUPREME COURT OF NOVA SCOTIA Citation: Geophysical Service Inc. v. Sable Mary Seismic Inc., 2011 NSSC 71 Date: 20110216 Docket: Hfx No. 190408 Registry: Halifax Between: Geophysical Service Incorporated v. Sable Mary Seismic Incorporated and Matthew Kimball Defendants Judge: The Honourable Justice M. Heather Robertson Heard: February 9, 2011, in Halifax, Nova Scotia SUPPLEMENTARY WRITTEN DECISION: February 16, 2011 Counsel: Colin Piercey and Tricia Barry, for the plaintiff, respondent Stephen Kingston and Justin Kimball, for the defendants, moving parties Robertson, J.: [1] By a motion dated December 16, 2010, the defendants sought an order confirming their ability to pay certain amounts for billed and unbilled time of their respective legal counsel, as well as retainers with respect to ongoing litigation, without such payments violating the terms of two execution orders previously issued February 18, 2010, as Hfx No. 190408 against the defendant judgment debtors to the plaintiff herein, who were successful litigants in this action. My written decision in this matter (2011 NSSC 67 (CanLII), 2011NSSC67) was rendered on February 15, 2011. [2] This is supplemental decision issued following correspondence dated February 16, 2011 received from Mr. Stephen Kingston, solicitor for the defendants, moving parties. Mr. Kingston wished to correct “. aspects of the Decision where believe the Court had misapprehended my oral submissions made during the Motion hearing.” And further states, “It was not my intention in my submissions to expand on the evidence otherwise before the Court in Ms. Cochrane’s affidavit.” The Court gratefully receives this clarification. [3] Ms. Cochrane’s affidavit sworn December 16, 2010, identified in para. 41.a the loans proposed to be used to pay for billed and unbilled time of the respective legal counsel, as well as retainers with respect to ongoing litigation: am advised by Matthew Kimball and do verily believe that: a. With loan or loans from third party or third parties he believes he and SMSI will be able to pay the retainers and legal fees referred to above; [4] The Court can now only rely upon the affidavit evidence of Ms. Cochrane relating to the third party loans. The affidavit evidence does not reveal where the loans come from or if they will reduce the exigible assets of the defendants, available for execution. I am therefore unable to grant the proposed order which accompanied the notice in this matter. [5] will be happy to hear submissions in writing on the matter of costs, failing any agreement. Justice M. Heather Robertson
The judge declared the defendants could pay legal fees from third party loans without offending two prior execution orders that prevented them from disposing of any property. The declaration was explicitly made on the assumption that the loans would not be secured against the defendants' existing assets. Later, the defendants' counsel wrote to the court essentially indicating he could not confirm the loans would not be secured against any assets. The court issued this supplemental decision. In the absence of any evidence the loans will not be secured against assets already subject to the execution order, or will not otherwise reduce those assets, the order and declaration sought can no longer be granted.