Boutilier v. Pearcey et al., (2011) 306 N.S.R.(2d) 281 (SC)

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: MacAdam, J.
• Citation: (2011), 306 N.S.R.(2d) 281 (SC),2011 NSSC 307
• Date: 25 March 2011
• Subject Matter: PRACTICE,INTEREST

Boutilier v. Pearcey (2011), 306 N.S.R.(2d) 281 (SC);

    968 A.P.R. 281

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. AU.002

Joanne Boutilier (plaintiff) v. Robert Pearcey and Harrietha Transfer Ltd. (defendants)

(Syd. No. 203307; 2011 NSSC 307)

Indexed As: Boutilier v. Pearcey et al.

Nova Scotia Supreme Court

MacAdam, J.

July 29, 2011.

Summary:

Following a civil jury assessment of damages, the plaintiff was awarded $142,952. In submissions to the jury, the plaintiff suggested an award between $1,019,952 and $1,354,952. The defendants suggested $54,952 to $84,952. The defendants also claimed that there should be deductions for failure to mitigate. The plaintiff denied that she failed to mitigate her damages. The plaintiff argued that each party was "successful to a degree" and should, therefore, bear their own costs. The defendants argued that, having regard to various offers to settle, they were successful and should receive costs. The jury award did not provide for prejudgment interest. The parties agreed that prejudgment interest would not be due for the cost of future care since the expense would not be incurred until after the jury's award. The calculation of prejudgment interest for expenses incurred before the trial and for general damages remained. The interest rate of 2.5% was agreed upon.

The Nova Scotia Supreme Court awarded the plaintiffs prejudgment interest for five years at 2.5%. The court held, inter alia, that the jury's award was materially and substantially less than an offer by the defendants. The court awarded the defendants $60,000 lump sum costs.

Interest - Topic 5137

Interest as damages (prejudgment interest) - Torts - Negligence - Personal injuries - The plaintiff was injured in a car accident in 2001 - Following a civil jury assessment of damages, the plaintiff was awarded $142,952 - The jury award did not provide for prejudgment interest - The parties agreed that prejudgment interest would not be due for the cost of future care since the expense would not be incurred until after the jury's award - The calculation of prejudgment interest for expenses incurred before trial and for general damages remained - The interest rate of 2.5% was agreed upon - At the costs hearing in March 2011, the plaintiff sought prejudgment interest from the date of the accident to trial - The defendants argued that given the circumstances, including the fact that they had made concerted efforts to resolve the matter as early as November 25, 2005, prejudgment interest should be limited to four years - The Nova Scotia Supreme Court awarded prejudgment interest for five years - See paragraphs 65 to 68.

Practice - Topic 6923.1

Costs - General principles - What rules applicable - A proceeding was commenced on March 11, 2004, several months before a new tariff for party and party costs was promulgated in September 2004 - The defendants argued that the 2009 Civil Procedure Rules applied to the issue of costs, but the 1989 tariff applied - Counsel referenced Bevis v. CTV Inc. (2004 N.S.S.C.), which had held that the 2004 tariff would not apply in an action commenced before its effective date - As a result, the parties did not dispute that the 1989 tariff applied to this proceeding - Rule 92.02 of the 2009 Rules provided that "Unless this Rule provides or a judge orders otherwise these Rules apply to all steps taken after the following dates in the following kind of proceedings: ... (b) January 1, 2009 in an action started before that day" - The Nova Scotia Supreme Court held that absent any application to apply the old Rules to the determination of party and party costs, the new Rules applied to the steps taken in the proceeding after January 1, 2009 - See paragraphs 9 to 12.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff was injured in a car accident in 2001 - A proceeding was commenced on March 11, 2004, several months before a new tariff for party and party costs was promulgated in September 2004 - In submissions to the jury, the plaintiff suggested an award between $1,019,952 and $1,354,952 - The defendants suggested $54,952 to $84,952 - Following a civil jury assessment of damages, the plaintiff was awarded $142,952 - The Nova Scotia Supreme Court awarded the defendants $60,000 lump sum costs - The court considered that the 1989 tariff applied, but it was inadequate to provide a substantial contribution to costs - Further, the jury's award was materially and substantially less than an offer by the defendants - Another factor was trial conduct, specifically as it related to the plaintiff's late disclosure of medical records generated in the summer of 2010, and the defence's inaction on learning that these documents had led their expert to modify his earlier prognosis on the plaintiff's expected recovery time.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7243 ].

Practice - Topic 7137

Costs - Party and party costs - Disbursements - Travelling expenses - Counsel - A trial was held in Sydney, Nova Scotia - The defendants obtained outside counsel - Defence counsel suggested that this was an exceptional circumstance in that plaintiff's counsel, when initiating the proceeding, knew that the defendants' counsel resided and practiced outside Sydney - The Nova Scotia Supreme Court stated that "This exception ... is not relevant. It has been recognized by many courts, in different jurisdictions, that a party should not be responsible for additional legal expenses incurred by the other party because it wished to retain counsel from outside the area where the litigation was being advanced. Apart from circumstances where it is shown that there is no other counsel competent to deal with the particular litigation practicing in the area, the predominant view has been that parties who wish to retain outside counsel may do so, but the additional costs of retaining counsel are theirs, regardless of whether they are successful or not." - See paragraph 88.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The Nova Scotia Supreme Court held that there was "nothing in the new [2009] Rules to preclude apportioning of costs having regard to the timing of the offer. Rule 10.09 only deals with the percentage of Tariff costs that a less than fully successful party may receive, not whether the other party is entitled to costs up to the date of the offer in question. However, in the circumstance of a lump sum costs award, any entitlement to costs by a party before receiving a settlement offer is but one of several factors in determining entitlement and amount of the lump sum. Plaintiff's counsel is correct that consideration of offers to settle and their impact on costs is wholly within the discretion of the court. However, this is not because it was reasonable for the plaintiff to have rejected any offer, or giving effect to the circumstances of the plaintiff at the time. Rather, it is because in deciding to award a lump sum, as I have decided in this instance, the Rules relating to the effect of the filing of offers, whether made informally or formally pursuant to the Rules in effect at the time the offer was made, are not necessarily determinative. A lump sum is an award made having regard to all the circumstances. Although a relevant consideration, and an important one in most instances, whether a party rejected an offer that was greater than the eventual tribunal decision is not determinative of what the lump sum should be. There often are, as there were in this case, other factors to be considered." - See paragraphs 59 to 62.

Practice - Topic 7648

Costs - The tariffs, schedules, etc. - Effect of change - [See first Practice - Topic 7117 ].

Cases Noticed:

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34; 2004 NSSC 209, appld. [para. 9].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 14].

Morash v. Burke (2007), 252 N.S.R.(2d) 335; 804 A.P.R. 335; 2007 NSSC 68, refd to. [para. 14].

Campbell v. Jones et al. (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212; 2001 NSSC 139, refd to. [para. 15].

Vogler v. Szendroi et al. (2011), 297 N.S.R.(2d) 391; 943 A.P.R. 391; 2011 NSSC 13, refd to. [para. 20].

Curwin v. Sobeys Group Inc. (2007), 265 N.S.R.(2d) 167; 848 A.P.R. 167; 2007 NSSC 164, refd to. [para. 24].

Marshall v. Annapolis County District School Board et al. (2010), 291 N.S.R.(2d) 145; 922 A.P.R. 145; 2010 NSSC 179, refd to. [para. 25].

Nassim v. Perth Insurance Co. (2009), 287 N.S.R.(2d) 200; 912 A.P.R. 200; 2009 NSSC 417, refd to. [para. 25].

Farrell v. Casavant (2010), 287 N.S.R.(2d) 281; 912 A.P.R. 281; 2010 NSSC 46, refd to. [para. 25].

Sydney Cooperative Society Ltd. v. Coopers & Lybrand (2006), 248 N.S.R.(2d) 83; 789 A.P.R. 83; 2006 NSSC 276, refd to. [para. 34].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410; 1992 CarswellNS 90 (T.D.), consd. [para. 48].

Goode v. Oursen (No. 3) (1991), 105 N.S.R.(2d) 389; 284 A.P.R. 389 (T.D.), consd. [para. 49].

Hillier v. Mann (2002), 202 N.S.R.(2d) 261; 632 A.P.R. 261; 2002 NSSC 28, consd. [para. 50].

Cyr and Cyr v. Ouellette and Lajoie (L.H.) ltée (1983), 56 N.B.R.(2d) 409; 146 A.P.R. 409 (T.D.), refd to. [para. 57].

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. 67].

Blerot v. Redvers Agricultural & Supply Ltd. (1987), 18 C.P.C.(2d) 358 (Sask. Q.B.), refd to. [para. 75].

Irving (J.D.) Ltd. v. Desourdy Construction Ltée (1973), 5 N.S.R.(2d) 350 (T.D.), refd to. [para. 78].

Abate v. Borges (1992), 12 C.P.C.(3d) 391; 1992 CarswellOnt 369 (Gen. Div.), refd to. [para. 81].

MacNeil Estate, Re (2002), 212 N.S.R.(2d) 133; 665 A.P.R. 133; 2003 NSSC 50, affd. (2003), 219 N.S.R.(2d) 80; 692 A.P.R. 80; 2003 NSCA 121, refd to. [para. 86].

DeWolfe v. Ferguson, [2000] N.S.J. No. 523 (S.C.), refd to. [para. 86].

Simpson Estate v. Cox (2006), 244 N.S.R.(2d) 38; 774 A.P.R. 38; 2006 NSSC 116, refd to. [para. 86].

Statutes Noticed:

Civil Procedure Rules (N.S.), 2009, rule 10.09(1) [para. 42]; rule 92.02(1) [para. 10].

Counsel:

Harvey M. MacPhee, Q.C., for the plaintiff;

Jocelyn M. Campbell, Q.C., for the defendants.

This costs matter was heard at Sydney, N.S., on March 25, 2011, by MacAdam, J., of the Nova Scotia Supreme Court, with final written submissions received on April 19, 2011. MacAdam, J., delivered the following decision on July 29, 2011.