Campbell-MacIsaac et al. v. Deveaux et al.

• Jurisdiction: Nova Scotia
• Judge: Gruchy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: (2005), 230 N.S.R.(2d) 304 (SC),2005 NSSC 15
• Date: 13 October 2004

Campbell-MacIsaac v. Deveaux (2005), 230 N.S.R.(2d) 304 (SC);

 729 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. FE.013

Kathryn M. Campbell-MacIsaac, Ronald MacIsaac, Chanelle Campbell-MacIsaac and Kielly Carlyn MacIsaac (plaintiffs) v. Lisa Deveaux and Lombard Insurance Company (defendants)

(S.H. 127233; 2005 NSSC 15)

Indexed As: Campbell-MacIsaac et al. v. Deveaux et al.

Nova Scotia Supreme Court

Gruchy, J.

January 21, 2005.

Summary:

The 51 year old plaintiff dentist severely injured her ankle in a motor vehicle accident caused by the defendant's negligence. The resulting permanent partial disability forced her to sell her dental practice and she lost her licence to practice dentistry. The plaintiff sued the defendant for damages for personal injuries. The plaintiff also sued her own insurer (Lombard) on a "Family Protection Endorsement", which insured her against an "inadequately insured motorist". At issue was the scope of that coverage, particularly whether the insurer could deduct the past and future long-term disability benefits that the plaintiff had received or was entitled to receive from her disability insurer (Canada Life).

The Nova Scotia Supreme Court, in a judgment reported (2003), 214 N.S.R.(2d) 129; 671 A.P.R. 129, allowed the action and assessed damages accordingly. The insurer was liable under the "Family Protection Endorsement". Although the insurer was entitled to deduct Section B weekly indemnity benefits already paid, it was not entitled to deduct long-term disability benefits already paid or the present value of future Section B and long-term disability benefits. The insurer appealed. The plaintiff cross-appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315, allowed the appeal in part and dismissed the cross-appeal. The insurer was entitled to credit against its own liability both present and future long-term disability benefits received or to be received and future Section B benefits to be received. The insurer had a right of subrogation and was entitled to an assignment of long-term disability benefits up to the extent of its liability to the plaintiff. The court reduced damages. Now at issue was the quantum of trial costs to the successful plaintiff.

The Nova Scotia Supreme Court resolved the costs issues accordingly.

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - The plaintiff was awarded damages of $2,162,723 plus $133,384.45 in prejudgment interest - The plaintiff had settled with the defendant for the $1,000,000 policy limits before trial and waived any entitlement to costs against the defendant - The defendant insurer (Lombard) was entitled to recover all long-term disability payments and Section B benefits payable by other insurers - At issue was the quantum of costs - The Nova Scotia Supreme Court held that (1) the "amount involved" was the damages awarded plus the amount of prejudgment interest, but excluded the present value of future long-term disability benefits - Given the complexity and importance of the issues, costs were awarded on Scale 5 - Since Scale 5 costs ($120,130) did not constitute a "sufficient contribution" to the plaintiff's actual legal expenses (said to be $500,000, an unreasonable amount), the court awarded a further $80,000 lump sum in addition to scale 5, for total costs of $200,130 - However, where the plaintiff had waived any right to costs against the defendant's insurer ($100,000 at time defendant withdrew defence), the amount for which the defendant's insurer would have been liable (50% of costs at that time, $50,000) was deducted from the costs payable by Lombard - Accordingly, Lombard was liable for $150,130 plus disbursements.

Practice - Topic 7037

Costs - Party and party costs - Entitlement to party and party costs - Factors or circumstances reducing entitlement (incl. waiver) - [See Practice - Topic 7003 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 7003 ].

Practice - Topic 7116

Costs - Party and party costs - Special orders - Gross or lump sum in addition to party and party costs - [See Practice - Topic 7003 ].

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. 13].

Hines v. Registrar of Motor Vehicles (N.S.) (1990), 105 N.S.R.(2d) 240; 284 A.P.R. 240 (T.D.), refd to. [para. 13].

Armstrong v. Baker and McCrindle (1992), 113 N.S.R.(2d) 420; 309 A.P.R. 420 (T.D.), refd to. [para. 13].

1874000 Nova Scotia Ltd. et al. v. Adams et al. (1996), 148 N.S.R.(2d) 1; 429 A.P.R. 1 (S.C.), refd to. [para. 13].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 13].

Campbell v. Jones et al. (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212 (S.C.), refd to. [para. 13].

Matheson (D.W.) & Sons Contracting Ltd. v. Canada (Attorney General) (1999), 175 N.S.R.(2d) 201; 534 A.P.R. 201 (S.C.), refd to. [para. 13].

Founders Square Ltd. v. Nova Scotia (Attorney General) (2000), 186 N.S.R.(2d) 189; 581 A.P.R. 189 (S.C.), refd to. [para. 13].

Hardman Group Ltd. et al. v. Alexander et al. (2003), 215 N.S.R.(2d) 280; 675 A.P.R. 280 (S.C.), refd to. [para. 21].

Burton v. Howlett (1999), 181 N.S.R.(2d) 189; 560 A.P.R. 189 (S.C.), refd to. [para. 26].

Mader v. Lahey and Mailman (1997), 176 N.S.R.(2d) 143; 538 A.P.R. 143 (S.C.), refd to. [para. 45].

Atlantic Business Interiors Ltd. v. Hipson et al. (2004), 226 N.S.R.(2d) 197; 714 A.P.R. 197 (S.C.), refd to. [para. 45].

Skeffington v. McDonough and Vanamburg (1992), 114 N.S.R.(2d) 181; 313 A.P.R. 181 (T.D.), refd to. [para. 47].

Burns et al. v. Hedge et al. (2001), 146 O.A.C. 333 (C.A.), refd to. [para. 50].

Skeffington v. McDonough and Vanamburg (1992), 112 N.S.R.(2d) 52; 307 A.P.R. 52 (T.D.), refd to. [para. 62].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 63.02, rule 63.03, rule 63.04(1), rule 63.04(2) [para. 12].

Counsel:

Gavin Giles, for the plaintiffs;

Cathy L. Dalziel (not appearing), for the defendant, Lisa Deveaux;

Michael E. Dunphy, for the defendant, Lombard Insurance Co.

This matter was heard on October 13, 2004, at Halifax, N.S., before Gruchy, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 21, 2005.