Trenholm v. H & C Trucking Ltd. et al.,

• Jurisdiction: Nova Scotia
• Judge: Wood, J.
• Neutral Citation: 2014 NSSC 418
• Citation: (2014), 353 N.S.R.(2d) 185 (SC),2014 NSSC 418,353 NSR(2d) 185,(2014), 353 NSR(2d) 185 (SC),353 N.S.R.(2d) 185
• Date: 24 November 2014
• Court: Supreme Court of Nova Scotia (Canada)

Trenholm v. H&C Trucking (2014), 353 N.S.R.(2d) 185 (SC);

    1115 A.P.R. 185

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. NO.041

Melissa Mae Louise Trenholm (plaintiff) v. H & C Trucking Ltd. and Robert Daniel Izzard (defendant)

(Hfx. No. 253018; 2014 NSSC 418)

Indexed As: Trenholm v. H & C Trucking Ltd. et al.

Nova Scotia Supreme Court

Wood, J.

November 24, 2014.

Summary:

In 2003, the plaintiff witnessed a truck strike and kill her friend as they walked along a highway after their vehicle broke down. The plaintiff did not suffer physical injury, but brought a negligence action for damages against the truck driver and his employer (defendants) for psychiatric injury (nervous shock). The defendants admitted negligence, but argued that the plaintiff did not suffer any recognizable psychiatric illness or disorder that was caused by the negligence.

The Nova Scotia Supreme Court, in a judgment reported (2014), 342 N.S.R.(2d) 273; 1083 A.P.R. 273, allowed the action and awarded $75,000 general damages for post traumatic stress and depression and $20,000 for past wage loss and loss of earning capacity. The medical evidence established that the plaintiff suffered a recognizable psychiatric injury that was caused by the defendants' negligence. The plaintiff sought costs. Notwithstanding multiple promises and missed deadlines, the plaintiff's counsel made no costs submissions.

The Nova Scotia Supreme Court awarded the plaintiff party and party costs of $37,610 under the basic scale, which included a 15% reduction for inefficiencies by the plaintiff's counsel. Absent submissions from the plaintiff's counsel, the court awarded $26,405.79 in disbursements, the amount the defendant's costs submissions conceded to be fair and reasonable. Given the failure of the plaintiff's counsel to file submissions on costs, in the face of repeated promises to do so and missed deadlines, the court made a separate award of costs for the taxation hearing ($2,500) and ordered that the plaintiff's counsel personally pay that amount to the defendant.

Barristers and Solicitors - Topic 849

Duty to court - Liability for costs - For conduct of proceedings - The plaintiff obtained judgment for $101,000 against the defendant in a negligence claim - Absent agreement between counsel, the court requested written submissions on costs - The plaintiff's counsel, despite repeated deadlines, promises, requests and even the threat of fixing costs without the plaintiff's submissions, failed to provide written submissions - The Nova Scotia Supreme Court held that it was prepared to fix costs solely on the basis of the defendant's written submissions without waiting any further - The plaintiff was prima facie entitled to costs and should not be penalized by counsel's behaviour - The court awarded the plaintiff party and party costs of $37,610 under the basic scale, which included a 15% reduction for inefficiencies by the plaintiff's counsel - Absent submissions from the plaintiff's counsel, the court awarded $26,405.79 in disbursements, the amount the defendant's costs submissions conceded to be fair and reasonable - Given the failure of the plaintiff's counsel to file submissions on costs in the face of repeated promises to do so and missed deadlines, the defendant was entitled to costs relating to the taxation process (which required the defendant to bear increased legal expenses) - The $2,500 award was payable personally by the plaintiff's counsel - See paragraphs 26 to 45.

Practice - Topic 7620

Costs - Taxation of costs - Costs of costs assessments - [See Barristers and Solicitors - Topic 849 ].

Cases Noticed:

Brocke Estate v. Crowell (2014), 348 N.S.R.(2d) 168; 1100 A.P.R. 168; 2014 NSSC 269, refd to. [para. 35].

Creighton v. Nova Scotia (Attorney General) et al. (2011), 309 N.S.R.(2d) 317; 979 A.P.R. 317; 2011 NSSC 437, refd to. [para. 38].

Counsel:

David W. Richey, for the plaintiff;

Murray J. Ritch, Q.C., and Christine Nault, for the defendant.

This matter was heard by way of written submissions from the defendant only at Halifax, N.S., before Wood, J., of the Nova Scotia Supreme Court, who delivered the following judgment on November 24, 2014.