Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al., 2012 NSSC 120

• Judge: Murray, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 20, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 120;(2012), 314 N.S.R.(2d) 376 (SC)

Bowden v. Withrow's Pharmacy (2012), 314 N.S.R.(2d) 376 (SC);

    994 A.P.R. 376

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. MR.058

Winnifred Bowden (plaintiff) v. Halifax Regional Municipality, David Chiasson, a partnership E. Mantley Maintenance Services, Withrow's Pharmacy Halifax (1999) Limited (defendants)

(Hfx. No. 213649; 2012 NSSC 120)

Indexed As: Bowden v. Withrow's Pharmacy Halifax (1999) Ltd. et al.

Nova Scotia Supreme Court

Murray, J.

March 1, 2012.

Summary:

Bowden sued Halifax for damages for injuries suffered when she slipped and fell on a Halifax sidewalk in front of a pharmacy. Bowden sued Halifax, the pharmacy and the maintenance company retained by the pharmacy to clear the sidewalk for damages for injuries suffered. The maintenance company chose not to defend and default judgment was obtained against it. The pharmacy cross-claimed against the maintenance company and Halifax, seeking indemnity if it was found liable. Halifax cross-claimed against the pharmacy and maintenance company, seeking indemnity if it was found liable. The pharmacy and Halifax applied for summary judgment under rule 13 respecting the claims against them and their cross-claims.

The Nova Scotia Supreme Court, in a decision reported at 268 N.S.R.(2d) 299; 857 A.P.R. 299, granted summary judgment dismissing Bowden's claim and Halifax's cross-claim against the pharmacy as failing to disclose a reasonable cause of action. The court dismissed Halifax's summary judgment application, as there was a genuine issue for trial as to whether Halifax, in carrying out the operational component of its snow-clearing policies, met the requisite standard of care. Seven months prior to the trial, Halifax made a formal offer to settle on a "without cost basis" provided that Bowden agreed to a dismissal of her claim. The offer provided that her acceptance could be communicated to Halifax any time before the trial began unless it was withdrawn by Halifax in writing. Approximately two months prior to trial, Halifax wrote a letter advising that they were renewing their offer to settle until the end of the next day, after which they needed to start preparing for trial and would be seeking costs and disbursements from that date forward. The letter did not withdraw the offer to settle. Ten days prior to the trial, the plaintiff accepted the offer. Halifax claimed entitlement to costs based on a former offer to settle.

The Nova Scotia Supreme Court refused to award costs and affirmed that the matter was settled on a without costs basis.

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - Seven months prior to trial in a personal injury action, the defendant municipality made an offer to settle on a "without costs basis" provided that the plaintiff agreed to a dismissal of her claim - Acceptance could be communicated to the municipality any time before the trial began unless it was withdrawn in writing - Two months prior to trial, the municipality wrote a letter advising that they were renewing their offer to settle until the end of the next day (December 19, 2011), after which they needed to prepare for trial and would be seeking costs and disbursements from that date forward - The letter did not withdraw the offer to settle - Ten days prior to the trial, the plaintiff accepted the offer - The municipality requested their costs after December 19, 2011, based on the former offer to settle (Civil Procedure Rule 10.08) - The Nova Scotia Supreme Court denied the request - The court refused to infer that the plaintiff had no intention of proceeding to trial - The facts were at least as consistent with the notion of her intending to go to trial but deciding against it, as with never having intended to go to trial - The municipality's request for costs was in opposition to their own settlement offer - Rule 10.08 did not apply because costs were addressed in the offer to settle - Even if it applied, the court would have had to also consider the plaintiff's costs prior to the offer under rule 10.08(2)(a) - Rule 10.05(4) described what an offer had to include to settle all claims - "Settlement on a without cost basis" meant no costs or a zero amount which satisfied the stated amount requirement (rule 10.05(4)(a)) - The other rule 10.05 requirements were satisfied - If settlement was to be encouraged, parties had to assume that they could rely on formal offers to settle until they were withdrawn.

Cases Noticed:

Gammell v. Sobeys Group Inc. (2011), 306 N.S.R.(2d) 61; 968 A.P.R. 61; 2011 NSSC 190, consd. [para. 13].

Statutes Noticed:

Civil Procedure Rule (N.S.), 1999, rule 10.05(4)(a) [para. 19]; rule 10.08(2) [para. 16].

Counsel:

Robert B. Carter, for the plaintiff;

E.R. MacLaurin, for the defendant.

This matter was heard at Halifax, Nova Scotia, on February 20, 2012, by Murray, J., of the Nova Scotia Supreme Court, who delivered the following judgment orally on March 1, 2012, and in writing on March 21, 2012.