Jacquelyn E. Stevens

The appellants were charged with unlawfully damaging and/or destroying protected rattlesnake habitat contrary to the Endangered Species Act, 2007.

They brought a s. 11(b) Charter application for a stay of proceedings based on unreasonable delay, which was dismissed by the trial judge.

The appellants then sought certiorari and s. 24(1) Charter relief in Superior Court, arguing the trial judge failed to characterize certain disclosure as "obviously relevant" and failed to attribute all delay to the Crown.

The Superior Court dismissed both applications.

The Court of Appeal upheld the dismissal, finding no jurisdictional error and rejecting the argument that the degree of relevance of outstanding disclosure alleviates the defence's obligation to act diligently.

The appeal was dismissed.

The defendant/plaintiff Nicol moved for an order to try four actions together, or alternatively, to try two specific actions together and waive the deemed undertaking rule.

The court dismissed the primary request for joinder of all four actions, finding the issues between the property damage claims and the service provider claims distinct and that the matter was largely res judicata.

However, the court granted the alternative relief, ordering the two property damage actions (McColgan and Piccolotto) to be tried together, and the service provider actions to be severed and tried separately.

The court also waived the deemed undertaking rule.

Costs were awarded against Nicol on a substantial indemnity basis for McColgan and Piccolotto, and partial indemnity for the Service Providers, due to Nicol's unsuccessful primary motion and refusal of reasonable settlement offers.