CIVIL EVIDENCE - Witnesses - Compelling attendance by subpoena - Issuance of

Law360 Canada (May 3, 2023, 6:19 AM EDT) -- Appeal by Mike’s Clothing Ltd. (Mike’s) from the dismissal of its motion seeking issuance of eight discovery subpoenas for non-party witnesses. Mike’s claimed those witnesses had relevant information about the Town of Kentville’s (Kentville) motives in failing to grant an extension to the timelines under a sales agreement and in seeking reconveyance of the property. An application in court was commenced by Kentville against Mike’s seeking reconveyance of property located at 374/376 Main Street in Kentville (Property). The Property was sold by Kentville to Mike’s. The sale was subject to conditions requiring Mike’s to develop the Property within a certain timeframe failing which Kentville had the right to have the Property reconveyed to it. Mike’s did not meet the required timelines. It applied for an extension but was denied. Mike’s claimed that the request for an extension was denied by Kentville as retribution against Zebian, Mike’s directing mind, for his attempts to uncover information related to the dismissal of Kentville’s former Chief Administrative Officer (CAO), Rice. Kentville commenced the application for reconveyance. Mike’s sought the issuance of eight discovery subpoenas for non-party witnesses to discover evidence it said would support Kentville’s breach of its contractual duty of good faith. Mike’s submitted that the motions judge erred in the following: by concluding Mike’s assertion that Kentville’s refusal to grant the extension requested was to punish Zebian, was not a material fact in issue, and therefore evidence related to it was irrelevant; in finding the proposed witnesses did not have relevant evidence or the motion was premature with respect to whether Kentville’s decision to seek reconveyance constituted retribution against Zebian; and, in concluding the discovery of the witnesses would not promote the just, speedy and inexpensive determination of the application....
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