Brocke Estate v. Crowell, 2014 NSSC 269

• Judge: Muise, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 16, 2013
• Jurisdiction: Nova Scotia
• Citations: 2014 NSSC 269;(2014), 348 N.S.R.(2d) 168 (SC)

Brocke Estate v. Crowell (2014), 348 N.S.R.(2d) 168 (SC);

    1100 A.P.R. 168

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. JL.062

Anna Gardner, Administrator of the Estate of John Gary Joseph Brocke (plaintiff) v. Arthur Crowell and Gaye Crowell (defendants)

(Ken No. 310335; 2014 NSSC 269)

Indexed As: Brocke Estate v. Crowell

Nova Scotia Supreme Court

Muise, J.

July 14, 2014.

Summary:

Brocke's estate brought a motor vehicle negligence action for damages against the defendants for a January 2009 fatal accident. Liability was admitted six weeks before trial. At issue in the middle of the jury trial was the appropriate discount rate in calculating damages, which involved the interpretation of ss. 4(1) and (2) of the Automobile Insurance Tort Recovery Limitation Regulations.

The Nova Scotia Supreme Court, in a judgment reported (2013), 335 N.S.R.(2d) 89; 1060 A.P.R. 89, held that the appropriate discount rate was the 3.5% rate prescribed by s. 4(1). The jury awarded approximately $800,000 total damages. Now at issue was the unresolved issues of prejudgment interest and costs.

The Nova Scotia Supreme Court awarded $6,805.15 in prejudgment interest, $40,925 in costs with no HST to be added, and $77,997.14 in disbursements, inclusive of HST.

Interest - Topic 5009

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Calculation of (incl. rate) - The plaintiff was awarded almost $800,000 damages for the defendants' negligence in a January 17, 2009, fatal accident - Separate awards were made by the jury for past and future loss of financial support and valuable services, and loss of expectation of future gifts - The plaintiff was not entitled to prejudgment interest on all damages awarded under the Fatal Injuries Act - The Nova Scotia Supreme Court agreed to the 1.27% prejudgment interest rate proposed by the plaintiff and defendants, subject to appropriate downward adjustments for inflation and the fact that the past loss of support and valuable services did not all occur as of the date of the accident - For past loss of support and valuable services, the court opted to make the adjustment by awarding prejudgment interest for 50% of the 4.6 year period between the accident and the date of trial - To account for the jury's inflation-adjusted award for the past loss of support and past loss of valuable services (to avoid double recovery), the court reduced the interest rate from 1.27% to 0.8% - No prejudgment interest was awarded for loss of future support and loss of future valuable services - The court declined to reduce the prejudgment interest period to account for the plaintiff's delay in bringing the matter to trial, as there was no undue delay to warrant such a reduction - The court also declined to not award prejudgment interest for loss of care, guidance and companionship - However, because the award was inflation-adjusted by the jury, the court reduced the interest rate to 0.3% - No prejudgment interest was awarded on the award for loss of expectation of future gifts of art - Prejudgment interest was awarded on funeral expenses (4.5 years) and on the cost of renovating a garage (three years) - See paragraphs 36 to 68.

Interest - Topic 5011

As damages (pre-judgment interest) - Interest on nonpecuniary general damages - [See Interest - Topic 5009 ].

Practice - Topic 7004

Costs - Party and party costs - General principles and definitions - Scale of costs - Fixing of - [See Practice - Topic 7028 ].

Practice - Topic 7028

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Unfounded, excessive or unnecessary actions or claims - A jury awarded the plaintiff almost $800,000 damages in a motor vehicle negligence action - There was 4.6 years between the accident and the trial - The defendants admitted liability, but only six weeks before trial - The damage award was halfway between the defendants' and plaintiff's offers to settle - The defendants' retention of independent counsel (apart from counsel retained by the insurer to defend the action) was unnecessary and did not affect costs - The plaintiff's counsel's docketed fees were $449,000, although this was a 30% contingency fee agreement whereby counsel received approximately $239,000 plus HST - The trial lasted 17.5 days - The Nova Scotia Supreme Court opined that the $239,000 constituted reasonable legal expenses and was the proper approximate amount upon which to assess whether Tariff A would provide substantial contribution to those legal expenses or whether a lump sum was required - Costs were awarded under Tariff A, scale 3 - That provided for costs of $81,000 plus a further $35,000 for 17.5 days of trial at $2,000 per day - Lump sum costs were denied, because the total Tariff amount of $116,000 (49% of reasonable legal expenses of $239,000) constituted a substantial contribution towards the plaintiff's legal expenses - In any event, the case did not require a level of "exceptional" legal services sufficient to warrant a departure from the Tariff - From the $116,000 starting point the court deducted $9,500 for the 4.5 to five days of trial time wasted by the plaintiff - The amount was further reduced by 45% on account of the plaintiff's unnecessary motions, unnecessary or problematic witnesses, wasted trial time and improper actions or tactics, as well as the prejudice and unnecessary expenses they caused to the defendants - After a further reduction of $7,000 (by way of setoff) in costs awarded to the defendant for their largely successful pre-trial motion to exclude expert evidence, the net costs award to the plaintiff was $40,925 - See paragraphs 69 to 136.

Practice - Topic 7029.3

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Delay or prolonging proceedings - [See Practice - Topic 7028 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7028 ].

Practice - Topic 7136

Costs - Party and party costs - Disbursements - Travelling expenses - General - Brocke died in an accident for which the defendants admitted liability - His estate brought a wrongful death action for damages under the Fatal Injuries Act - Brocke's spouse and his children and step-children claimed as disbursements the travel expenses of the spouse and children to attend the trial - Damages were not claimed by the children as parties, but by the estate as personal representative of the estate - The Nova Scotia Supreme Court stated that "the children were effectively parties; and, in my view, the constraint against allowing their travel related expenses to be claimed as disbursements applies. It would be nonsensical to disallow their travel expenses if [they were] added as named parties, and to allow those expenses merely because the Plaintiff sued as their representative. Consequently, I will disallow all expenses for transportation, meals and accommodations in relation to the Plaintiff and the children." - See paragraphs 159 to 164.

Practice - Topic 7141

Costs - Party and party costs - Disbursements - Cost of expert advice - The Nova Scotia Supreme Court stated that "negative cost consequences generally flow from a party unnecessarily calling an expert witness to testify when the other party agrees the expert's report may be entered into evidence without cross examination, and that such consequences may include denying recovery of disbursements for that expert" - See paragraph 95.

Cases Noticed:

Terris v. Crossman (1995), 134 Nfld. & P.E.I.R. 349; 417 A.P.R. 349 (P.E.I.T.D.), refd to. [para. 12].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91; 1992 CarswellNS 569 (C.A.), refd to. [para. 37].

Hiltz and Seamone Co. v. Nova Scotia (Attorney General) et al. (1999), 173 N.S.R.(2d) 341; 527 A.P.R. 341; 1999 CarswellNS 5 (C.A.), refd to. [para. 37].

Shaw Estate and Shaw v. Roemer and Smith Transport Co. (1982), 51 N.S.R.(2d) 229; 102 A.P.R. 229; 1982 CarswellNS 105 (C.A.), refd to. [para. 43].

Downey v. Yasmine, 1985 CarswellNS 158 (T.D.), refd to. [para. 43].

Mader v. Lahey and Mailman (1997), 176 N.S.R.(2d) 143; 538 A.P.R. 143; 1997 CarswellNS 572 (S.C.), refd to. [para. 47].

Curry Estate v. Burke, 1989 CarswellNS 393 (T.D.), refd to. [para. 47].

Gaum v. Wolfe (D.G.) Enterprises Ltd. (1998), 171 N.S.R.(2d) 76; 519 A.P.R. 76 (S.C.), refd to. [para. 56].

Simpson Estate v. Cox (2006), 244 N.S.R.(2d) 38; 774 A.P.R. 38; 2006 NSSC 84; 2006 NSSC 116, refd to. [para. 59].

Lutley v. Jarvis Estate et al. (1992), 113 N.S.R.(2d) 201; 309 A.P.R. 201; 1992 CarswellNS 584 (T.D.), refd to. [para. 60].

Thériault et al. v. ING Insurance Co. of Canada (2006), 307 N.B.R.(2d) 99; 785 A.P.R. 99; 2006 NBQB 407, refd to. [para. 77].

MacCormick v. Dewar, [2011] N.S.R.(2d) Uned. 15; 2011 NSSC 10, refd to. [para. 78].

Richards v. Richards et al. (2013), 335 N.S.R.(2d) 203; 1060 A.P.R. 203; 2013 NSSC 269, refd to. [para. 83].

Armoyan v. Armoyan (2013), 337 N.S.R.(2d) 365; 1067 A.P.R. 365; 2013 NSCA 136, refd to. [para. 84].

MacIntyre v. Cape Breton District Health Authority (2011), 298 N.S.R.(2d) 223; 945 A.P.R. 223; 2011 NSCA 3, refd to. [para. 88].

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, refd to. [para. 89].

Campbell et al. v. Varanese (1991), 102 N.S.R.(2d) 104; 279 A.P.R. 104 (C.A.), refd to. [para. 95].

Rowe et al. v. Brown (2008), 261 N.S.R.(2d) 332; 835 A.P.R. 332; 2008 NSSC 13, refd to. [para. 95].

Zlatkovic v. Wladyczanski, [1981] O.J. No. 431 (H.C.J.), refd to. [para. 104].

Robertson-Phillips v. Demuth, [1991] B.C.J. No. 3671 (S.C.), refd to. [para. 104].

Moyer v. Bosshart, [1991] B.C.J. No. 3738 (S.C.), refd to. [para. 104].

HMC Group Inc. v. Nova Scotia (Attorney General) et al. (2000), 188 N.S.R.(2d) 268; 587 A.P.R. 268 (S.C.), refd to. [para. 110].

Rhyno Demolition Inc. v. Nova Scotia (Attorney General) et al. (2005), 233 N.S.R.(2d) 311; 739 A.P.R. 311 (S.C.), refd to. [para. 110].

Robb Estate et al. v. Canadian Red Cross Society et al., [2001] O.J. No. 702 (Sup. Ct.), refd to. [para. 110].

Real Securities of Canada Ltd. v. Beland, [1987] O.J. No. 1424 (Div. Ct.), refd to. [para. 110].

Fraser et al. v. Westminer Canada Ltd. et al. (2005), 233 N.S.R.(2d) 201; 739 A.P.R. 201 (C.A.), refd to. [para. 110].

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2012), 317 N.S.R.(2d) 262; 1003 A.P.R. 262; 2012 NSCA 57, refd to. [para. 121].

Roose v. Hollett et al. (1996), 154 N.S.R.(2d) 161; 452 A.P.R. 161 (C.A.), refd to. [para. 136].

MacIntyre v. Cape Breton District Health Authority (2010), 290 N.S.R.(2d) 300; 920 A.P.R. 300; 2010 NSSC 170, refd to. [para. 136].

Allto-Import, A. Larsson A.B. v. Fairbanks et al. (1990), 98 N.S.R.(2d) 387; 263 A.P.R. 387 (T.D.), refd to. [para. 160].

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. 161].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 77.02 [para. 70]; rule 77.06(1), rule 77.07, rule 77.08 [para. 71]; rule 77.12 [para. 92].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Brian Hebert, for the plaintiff;

Debbie Brown and Franco Tarulli, for the defendants.

This matter was heard on October 16, 2013, at Windsor, N.S., before Muise, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 14, 2014.