Carruthers Enterprises Ltd. v. Prince Edward Island Teachers' Federation, (2002) 211 Nfld. & P.E.I.R. 42 (PEITD)

• Judge: Cheverie, J.
• Case Date: January 14, 2002
• Jurisdiction: Prince Edward Island
• Citations: (2002), 211 Nfld. & P.E.I.R. 42 (PEITD);2002 PESCTD 02

Carruthers v. Teachers (2002), 211 Nfld. & P.E.I.R. 42 (PEITD);

    633 A.P.R. 42

MLB headnote and full text

Temp. Cite: [2002] Nfld. & P.E.I.R. TBEd. JA.004

Carruthers Enterprises Ltd. carrying on business under the firm name and style of Action Press (plaintiff) v. Prince Edward Island Teachers' Federation (defendant)

(GSC-18145; 2002 PESCTD 02)

Indexed As: Carruthers Enterprises Ltd. v. Prince Edward Island Teachers' Federation

Prince Edward Island Supreme Court

Trial Division

Cheverie, J.

January 14, 2002.

Summary:

The plaintiff sued the defendant for pay­ment under an alleged contract respecting copying and related services for a confer­ence. The defendant's position was that the wrong defendant was being pursued. It made it clear throughout the proceedings that, if successful, it would seek solicitor and client costs.

The Prince Edward Island Supreme Court, Trial Division, dismissed the action but awarded the defendant party and party costs only.

Practice - Topic 7457

Costs - Solicitor and client costs - Entitle­ment to - Where claim without merit - The plaintiff sued the defendant for payment under an alleged contract - The defendant's position was that the wrong defendant was being pursued and it so advised the plain­tiff prior to the commencement of the action - It made it clear throughout the proceedings that, if successful, the defend­ant would seek solicitor and client costs - The Prince Edward Island Supreme Court, Trial Division, dismissed the action but awarded the defendant party and party costs only - Although the plaintiff was unsuccessful, it had an honest belief in the facts as it understood them and had an arguable case - See paragraphs 26 to 30.

Cases Noticed:

Baynes & Horie v. Vancouver Board of School Trustees, [1927] 2 D.L.R. 698 (B.C.S.C.), refd to. [para. 14].

Fobasco Ltd. v. Cogan (1990), 72 O.R.(2d) 254 (H.C.), refd to. [para. 25].

Isaacs v. MHG International Ltd. (1984), 3 O.A.C. 301; 7 D.L.R.(4th) 570 (C.A.), refd to. [para. 28].

Foulis v. Robinson (1978), 92 D.L.R.(3d) 134 (Ont. C.A.), refd to. [para. 28].

Shier v. Fiume (1991), 6 O.R.(3d) 759 (Gen. Div.), refd to. [para. 28].

Wallace Sign-Crafters West Ltd. v. 466126 Ontario Ltd. and Matthews (1994), 72 O.A.C. 213; 28 C.P.C.(3d) 75 (Div. Ct.), refd to. [para. 29].

Authors and Works Noticed:

Fridman, Gerald Henry Louis, The Law of Agency (1960), pp. 55 [para. 25]; 96 [para. 24].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), pp. 16, 17 [para. 15]; 19, 20 [para. 21].

Counsel:

James W. Macnutt, Q.C., for the plaintiff;

Paul J.D. Mullin, Q.C., for the defendant.

This action was heard on December 6, 7, and 18, 2001, at Charlottetown, Prince Edward Island, before Cheverie, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following judg­ment on January 14, 2002.