Cape Breton Development Corp. v. Roper (D.) Services Ltd., (2002) 203 N.S.R.(2d) 21 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 05, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 203 N.S.R.(2d) 21 (SC);2002 NSSC 39

Cape Breton Dev. v. Roper Services (2002), 203 N.S.R.(2d) 21 (SC);

 635 A.P.R. 21

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. AP.002

Cape Breton Development Corporation (plaintiff/defendant by counterclaim) v. D. Roper Services Limited (defendant/plaintiff by counterclaim)

(SN No. 04087; 2002 NSSC 39)

Indexed As: Cape Breton Development Corp. v. Roper (D.) Services Ltd.

Nova Scotia Supreme Court

MacAdam, J.

March 5, 2002.

Summary:

Devco issued an invitation for tenders for the banking, blending and lifting of coal products at a coal preparation plant. Roper Ltd. was awarded the contract. Roper's equipment began to suffer breakdowns. Devco terminated the contract, claiming that Roper was unable to perform its obligations under the contract. Devco sued Roper, claim­ing reimbursement of monies advanced to Roper and for expenses incurred for equip­ment rentals and other activities necessitated by Roper's failure to perform under the contract. Roper counterclaimed for damages arising out of losses allegedly caused by Devco's wrongful termination of the contract and for extras performed under the contract for which it was never paid. Roper also alleged negligent misrepresentation and breach of contract, arguing that the coal tonnages provided by Devco were substan­tially less than those set out in the invitation for tender and incorporated into the purchase order.

The Nova Scotia Supreme Court, in a decision reported at 202 N.S.R.(2d) 201; 632 A.P.R. 201, held that Roper fundamentally breached the contract by failing to perform due to equipment breakdown. Devco funda­mentally breached the contract by failing to provide coal approximating the tonnages it had represented. The court denied Roper's claim for negligent misrepresentation. Roper was not entitled to any claim for loss of profits for the unexpired term of the contract because it would have been operating at a loss even if the estimated tonnages had been provided. Even if there had been a loss, it would have been limited to 30 days because Devco was entitled to terminate the contract on 30 days notice. Devco was entitled to be reimbursed for certain equipment rentals and extra costs it incurred and overpayments made to Roper. The court awarded Roper $10,000 for extras that it had performed. Each party sought costs.

The Nova Scotia Supreme Court awarded Devco costs on Scale 4, but reduced the costs award by 20%. The court refused to award costs to either party on Roper's coun­terclaim. The court limited Devco's entitle­ment to prejudgment interest because of the extraordinary delay in the matter getting to trial.

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - Devco sued Roper Ser­vices, alleging breach of contract - The alleged breach occurred on March 13, 1986 - The originating notice of action was filed on September 10, 1986 - It took the matter 15 years to get to trial - It was unclear why it took so long and there was no evidence to justify the delay - The Nova Scotia Supreme Court allowed Devco's action - Devco sought prejudgment interest from the date of the breach to the date of judgment - Notwithstanding Roper's ap­parent concession that Devco was entitled to interest from February 1, 1992, the court limited prejudgment interest to five years after the breach, where there was no explanation for the extraordinary delay - See paragraphs 25 to 27.

Practice - Topic 7026

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Nomi­nal success - Roper Services commenced a counterclaim against Devco, alleging breach of contract - Roper claimed dam­ages ranging from $3,757,000 to $7,310,000 - The Nova Scotia Supreme Court held that Devco breached the con­tract - However, the court held that if Devco had not breached the contract, it was unlikely that Roper would have been able to fulfill its obligations under the contract - Alternatively, if Roper would have performed its contractual obligations, it would have lost money and, therefore, Devco's breach did not cause Roper any financial loss - The court awarded Roper $10,000 - The court denied Devco's claim for costs in defending the claim, holding that Roper was successful in establishing a breach of contract and in obtaining dam­ages, albeit nominal - The court denied Roper's claim for costs because it only obtained nominal damages - See para­graphs 15 to 24.

Practice - Topic 7037

Costs - Party and party costs - Entitlement to - Factors or circumstances reducing entitlement - Devco alleged that Roper Services breached a contract between them - Devco claimed reimbursement for monies advanced to Roper under the contract and costs incurred as a result of Roper's failure to perform under the contract - Devco's original claim was for $772,946 but Devco reduced it to $313,946 at the outset of the trial - The trial took over 25 days plus written and oral submission - Devco received $270,307 damages - The Nova Scotia Supreme Court awarded Devco costs on Scale 4 - However, the court reduced the costs award by 20% because of Devco's late withdrawal of claims and its late production of documents - The re­duction only applied to fees and not to proper disbursements - The court rejected that Roper was entitled to costs based on the amount of the claims withdrawn - See paragraphs 11 to 14.

Practice - Topic 7043

Costs - Party and party costs - Entitlement to - On discontinuance or abandonment - [See Practice - Topic 7037 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Diffi­culty and complexity of proceedings - Devco alleged that Roper Services breached a contract between them - Devco claimed reimbursement for monies advanced to Roper under the contract and costs incurred as a result of Roper's failure to perform under the contract - The trial took over 25 days plus written and oral submission - Devco received $270,307 damages - Both parties agreed that Devco's costs should be based on Tariff A, Scale 5 - The Nova Scotia Supreme Court awarded costs on Scale 4, notwithstanding the parties' concurrence on Scale 5 - The factual issues were not particularly com­plex, although witnesses had to rely on documents to refresh their memories because it took 15 years to get to trial - There were a number of legal issues, but none were so complicated or unique to warrant Scale 5 costs - See paragraphs 7 to 10.

Cases Noticed:

Nathu v. Imbrook Properties Ltd. (1992), 131 A.R. 186; 25 W.A.C. 186; 4 Alta. L.R.(3d) 149 (C.A.), refd to. [para. 6].

Hines v. Englund (1993), 124 N.S.R.(2d) 156; 345 A.P.R. 156 (S.C.), refd to. [para. 7].

Cranwill v. James et al. (1995), 173 A.R. 376 (Q.B.), refd to. [para. 8].

Griffin v. Corcoran (2001), 193 N.S.R.(2d) 279; 602 A.P.R. 279 (C.A.), refd to. [para. 16].

McManus v. Nova Scotia (Attorney Gen­eral) (1995), 147 N.S.R.(2d) 318; 426 A.P.R. 318 (T.D.), refd to. [para. 18].

Fillier v. Merlin Estate et al., [1999] 181 N.S.R.(2d) 115; 560 A.P.R. 115 (S.C.), refd to. [para. 18].

Counsel:

George W. MacDonald, Q.C., & Aidan J. Meade, for the plaintiff/defendant by counterclaim;

Gary J. Corsano & Nicole E. LeBlanc, for the defendant/plaintiff by counterclaim.

This matter was heard by written sub­missions on January 15 and 31, 2002, by MacAdam, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 5, 2002.