Boutcher et al. v. Clearwater Seafoods Limited Partnership, 2010 NSSC 64

• Judge: MacLellan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 06, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 64;(2010), 290 N.S.R.(2d) 293 (SC)

Boutcher v. Clearwater Seafoods (2010), 290 N.S.R.(2d) 293 (SC);

    920 A.P.R. 293

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. AP.089

Cecil Boutcher and Clyde Knickle (plaintiffs) v. Clearwater Seafoods Limited Partnership, a Nova Scotia Limited Partnership (defendant)

(Hal. 244471; 2010 NSSC 64)

Indexed As: Boutcher et al. v. Clearwater Seafoods Limited Partnership

Nova Scotia Supreme Court

MacLellan, J.

April 26, 2010.

Summary:

The plaintiffs Boutcher and Knickle were employed as captains on the defendant's scallop vessels for years prior to 1998, without written employment contracts. In 1998, after being given 17 months' notice, both plaintiffs were terminated and then re-employed under written multi trip employment agreements that entitled them to $25,000 unless they were given 30 days' notice of termination. In 2003, the defendant replaced the multi trip agreements with single trip employment agreements. These agreements provided no notice or pay in lieu of notice. The plaintiffs continued for two years under a series of single trip agreements. Starting in 2005, the defendant intended to fish using new freezer vessels. The vessels captained by the plaintiffs were taken out of service. The plaintiffs were not chosen to captain a freezer vessel. Boutcher was offered employment as captain of a survey vessel at a diminished salary. He rejected the offer. Knickle was not offered further employment. The plaintiffs sued for damages for wrongful dismissal.

The Nova Scotia Supreme Court, in a judgment reported (2009), 276 N.S.R.(2d) 160; 880 A.P.R. 160, held that the plaintiffs were dismissed without cause. The plaintiffs, by signing the 1998 written multi trip agreements, rather than suing for wrongful dismissal at that time, were estopped from now arguing that 17 months did not constitute reasonable notice. Further, given their years of service at that time, 17 months constituted reasonable notice. However, the single trip agreements (no notice of termination) did not estop the plaintiffs from claiming their notice entitlement under the 1998 multi trip agreements. The single trip employment agreements, unilaterally removing the notice requirement, were invalid for want of consideration, and were, in reality, contracts for an indefinite term. Both plaintiffs were entitled to $25,000 in lieu of notice under the 1998 employment agreements and three months' reasonable notice for the two years they were employed under the invalid single trip agreements. A claim for Wallace damages was dismissed for want of the required bad faith. Boutcher's failure to accept alternate employment was a failure to mitigate, disentitling him to both the $25,000 and the three months' notice. Knickle, who did not fail to mitigate, was entitled to the $25,000 plus the three months' notice, for a total of $55,498. The plaintiffs appealed. The defendant cross-appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2010), 288 N.S.R.(2d) 177; 914 A.P.R. 177, allowed Boutcher's appeal and held that he, like Knickle, was entitled to the $25,000 plus three months' notice. He had not failed to mitigate by refusing the alternate employment at significantly lower remuneration. The court dismissed Knickle's appeal and the defendant's cross-appeal. The matter was remitted to determine costs. Damages awarded to the plaintiffs totalled $116,005. They submitted that they incurred approximately $100,000 in legal costs.

The Nova Scotia Supreme Court awarded the plaintiffs costs totalling $42,250, including costs under Scale 2 of Tariff A ($12,250), $10,000 in costs for five trial days, plus a $20,000 lump sum to ensure a substantial contribution towards the plaintiffs' actual legal costs. The plaintiffs were not entitled to GST on their costs award.

Practice - Topic 6932

Costs - General principles - Goods and services tax on costs - [See Practice - Topic 7116 ].

Practice - Topic 7116

Costs - Party and party costs - Special orders - Gross or lump sum in addition to party and party costs - The plaintiffs were awarded a total of $116,005 for wrongful dismissal - They incurred approximately $100,000 in legal costs - At issue in assessing the plaintiffs' costs was the scale to be used under Tariff A, whether a daily trial amount should be awarded, whether an additional lump sum was warranted and whether HST should be added to the costs award - The Nova Scotia Supreme Court held that the basic scale 2 was appropriate ($12,250) plus $10,000 for five trial days, for a total of $22,250 - Since that amount would not constitute a substantial contribution towards the plaintiffs' legal costs, a further lump sum of $20,000 was warranted, increasing costs to $42,250 - The court stated that "to allow costs that would be significantly less than their actual legal costs would result in the plaintiffs using a significant part of their damage awards to pay their lawyer. ... [I]t has become a common practice for this court to be faced with such a request and to grant a lump sum of costs in circumstances where the tariff amount does not result in close to a substantial contribution to a party's actual legal costs. To do so the court must be satisfied that the legal costs were actually incurred and were reasonable considering the complexity of the case." - The plaintiffs were not entitled to have HST added to their costs award.

Cases Noticed:

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (T.D.), refd to. [para. 12].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (S.C.), refd to. [para. 19].

Burns v. Sobeys Group Inc. (2008), 263 N.S.R.(2d) 385; 843 A.P.R. 385 (S.C.), refd to. [para. 29].

Morash v. Burke et al. (2007), 252 N.S.R.(2d) 335; 804 A.P.R. 335 (S.C.), refd to. [para. 29].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34 (S.C.), refd to. [para. 29].

Miller v. Royal Bank of Canada (2008), 265 N.S.R.(2d) 58; 848 A.P.R. 58; 2008 NSSC 139, refd to. [para. 31].

Willis v. Mailman (Bernard L.) Projects Ltd. et al. (2008), 264 N.S.R.(2d) 1; 847 A.P.R. 1; 2008 NSSC 94, refd to. [para. 31].

Roose v. Hollett et al. (1996), 154 N.S.R.(2d) 161; 452 A.P.R. 161 (C.A.), refd to. [para. 36].

Counsel:

Grant Machum and Mark Tector, for the plaintiffs;

Nancy F. Barteaux and Isabelle French, for the defendant.

This matter was heard by way of final written submissions on January 6, 2010, at Halifax, N.S., before MacLellan, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 26, 2010.