7 THE COURT: Thank you very kind. It's 20 after

8 12:00. On the question of application for

9 production of documents, i.e. Dr. Leary's making

10 production of documents request, what is your

11 position on that?

12 MR. BALCOME: I would submit, My Lord, that we

13 are looking for those documents. The process has

14 not finished yet. I know there are some

15 documents that I will have to do a supplementary

16 list and I can certainly indicate to the court

17 that I can give the court a time limit in terms

18 of when that search can be completed. I would say

19 that it's going to take no more than another week

20 or two weeks. I've been in touch with Mr.

21 Belliveau…

22 THE COURT: How about if I were to grant an order

REPLY SUBMISSIONS BY MR. BALCOME 101

1 on that subject giving you until the – well to be

2 fair to you so that we won't have to come back so

3 you'd get an extra couple of weeks to the end of

4 July?

5 MR. BALCOME: Oh, that would be fine, My Lord.

6 You can grant that order, My Lord and in fact

7 I'll be in touch with Dr. Leary well before then.

8 THE COURT: Yeah well I'm saying then it gives

9 you an ample opportunity even it you have to go

10 back and – because sometimes some people who

11 provide documents that aren't complete, that will

12 give you time to go back to them and say, "Listen

13 I need some documents that may be related to

14 this."

15 MR. BALCOME: Absolutely, My Lord. That would be

16 agreeable.

17 THE COURT: Okay, so I'm going to grant that

18 order, Dr. Leary.

In yet on December 11, 2008 the same judge wrote a letter stating: "The record is clear that I did not make an order for the production of documents except to make general comments that I expected the plaintiff produced [sic] the documents in question. Furthermore, I did not want to make an Order as to the production of until I decided the question of the application to dismiss the claim for want of prosecution."

On November 27, 2008 the attorney for ACOA had written to the Judge saying, in part, "At the hearing before Your Lordship no order was granted with respect to the production of documents, but I did mention that I would be able to file our Supplementary List by the end of July. Our Prothonotary, Lisa Taylor, reviewed the tapes from the hearing and the above is consistent with Ms. Taylor's review."

On November 21, 2008, the attorney for ACOA had written to the American Defendants: "There is no ORDER for production of anything.  It was discussed in court between myself and Justice LeBlanc.  No order was granted."

Was the judge simply repeating this powerful federal agency's assertions about the Order and relying on his representation of what happened? Is this justice and fair treatment?

After the American investors filed an appeal of the judge's unsubstantiated order regarding disclosure of names & addresses, which now brings what happened at the hearing under higher scrutiny, on February 18, 2009 the same judge wrote to ACOA's attorney reversing himself (emphasis added): "You will recall that at the June 5, 2008 hearing regarding the above noted matter I ordered the production of additional documents. However, I agreed that I would not issue that order until I dealt with Dr. Leary's application for dismissal of statement of claim for want of prosection. I rendered that decision whereby I denied Dr. Leary's application. Nonetheless, I believe that the order for production is still in effect and therefore it is necessary to formalize this ruling by the issuance of an appropriate order. . . .  I have received your correspondence indicating that certain documents have been destroyed. However, that does not change my ruling."

According to the rules of court, no written order was required for a verbal order giving basic instructions or setting deadlines. According to those same rules, a verbal order goes into effect as soon as it is uttered by the judge. As of March 25, 2009, ACOA has still not needed the judge's order and refuses to divulge details about its document destruction in 2005 and 2006, or to say where additional relevant documents are.

The attorney for ACOA maintains that the document destruction is irrelevant.

Long before the events surrounding the June, 2008 hearing, attorneys for ACOA had taken a default judgment against one of the American defendants--the partnership that preceeded the corporation--without giving any notice to attorneys on the other side. These attorney also told the Prothonotary that the partnership was not represented by counsel, even though they knew such was not the case. ACOA only agreed to have the default judgment reversed a few days before a hearing before the court was to take place. Such behaviour goes against the ethical standards set by the Nova Scotia Barrister's Society.