Executive Summary: Key Legal and Evidentiary Issues

• Adjournment granted despite the hearing being peremptory on the Plaintiff.

• Allegations of abusive conduct by opposing counsel were rejected by the Court.

• Authorization granted for Plaintiff to obtain audio recordings of discovery, with condition to share with all counsel.

• Requests to compel answers and obtain unredacted emails must be made by formal motion with proper evidence.

• All parties instructed to confirm and serve motions for the June 23, 2025 hearing by April 17, 2025.

• Plaintiff’s motion adjourned to April 13, 2026; Court remains seized of the matter.

Facts of the case

Alma Cherry, the Plaintiff, initiated proceedings against Novex Insurance Company and later named multiple parties including Nubury Properties Limited, Care Pest Management Inc., Ecosmart Technologies Ltd., and Biosweep Canada Corporation. The litigation history includes both original and third-party claims. On April 8, 2025, a motion brought by the Plaintiff to dismiss the third-party claims for delay was scheduled to be heard. However, the Plaintiff requested an adjournment of the motion for a second time—the original hearing having been postponed from October 2024.

During the hearing, the Plaintiff voiced multiple complaints about the conduct of defense counsel and one of the Defendants’ deponents, alleging verbal abuse during discovery. She also requested judicial authorization to access audio recordings from the discovery examinations.

Court’s response to procedural issues and allegations

Justice E.M. Morgan stated that there was no evidence of unprofessional or abusive conduct by any of the defense counsel, noting instead that all counsel had remained professional, polite, and patient throughout the proceedings. Nevertheless, the Court granted the Plaintiff permission to obtain the audio recordings from the transcriptionist. The judge added a condition: if the Plaintiff wished to submit or share the recording, she must first provide a copy to all counsel to allow review for off-the-record or privileged content.

The Plaintiff also sought to compel answers to previously refused discovery questions and to obtain unredacted emails produced by the Defendants. The Court made it clear that such relief must be sought by formal motion with supporting materials such as transcripts and documents, and advised the Plaintiff to contact the Associate Justices court to schedule the necessary motion due to the judge’s full calendar.

Future hearing dates and procedural direction

Counsel for Novex Insurance opposed the adjournment, citing the peremptory nature of the April 8, 2025 appearance. Counsel for EcoSmart Technologies Ltd. and Nubury Properties Ltd. noted that they had scheduled June 23, 2025 for their own motions to dismiss for delay. Justice Morgan instructed all Defendants’ counsel to confirm their intention to proceed by April 17, 2025, and to serve a Notice of Motion by that same date.

The Plaintiff was informed that if the Defendants proceed with a motion on June 23, she must be prepared to respond. She also inquired about striking the Defendants' defences, and the Court advised her that she could bring a cross-motion to be heard on the same day, provided she serves a Notice of Motion and informs the judge’s assistant by April 17.

Outcome and judicial guidance

Justice Morgan ruled that the Plaintiff’s motion is adjourned to April 13, 2026. He emphasized that this adjournment does not affect the scheduled June 23, 2025 motion from the Defendants, which will proceed on its own merits if brought. The Court reiterated that it will not delay or adjourn the Defendants’ motion merely because the Plaintiff’s motion is pending.

The Court concluded by confirming that it remains seized of the matter, ensuring that the same judge will handle future developments in the case.

Successful party

There is no conclusive successful party in this particular decision. The matter was procedural in nature and no determination on the merits was made. The Plaintiff, Alma Cherry, was granted an adjournment of her motion to dismiss the third-party claims despite opposition from the Defendants, but this does not amount to a substantive win.