Creighton v. Nova Scotia (Attorney General) et al., 2011 NSSC 437

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 06, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 437;(2011), 309 N.S.R.(2d) 317 (SC)

Creighton v. N.S. (A.G.) (2011), 309 N.S.R.(2d) 317 (SC);

    979 A.P.R. 317

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. NO.068

David S. Creighton (plaintiff) v. The Attorney General of the Province of Nova Scotia, James Adams, Helen Adams, both of Chester, Nova Scotia and Car-Con Holdings L.L.C., a body corporate, incorporated under the laws of the State of New York, United States of America (defendants)

(Bwt. 220834; 2011 NSSC 437)

Indexed As: Creighton v. Nova Scotia (Attorney General) et al.

Nova Scotia Supreme Court

Pickup, J.

November 25, 2011.

Summary:

The plaintiff commenced an action under the Quieting Titles Act. The disputed lands comprised a portion of land and accompanying water lot within Grant 4701 located in Chester, Nova Scotia.

The Nova Scotia Supreme Court, in a decision reported at 301 N.S.R.(2d) 360; 953 A.P.R. 360, allowed the application. The court held that the plaintiff had the superior paper title to lots 3 and 4 within Grant 4701. Alternatively, he had established possessory title to the disputed lands based on the doctrine of constructive possession. In the further alternative, he had established possessory title based on adverse possession through open, notorious, continuous, exclusive, actual possession for over 20 years. The defendant Car-Con requested a certificate of title for the remaining portion of the water lot included within Grant 4701 (i.e., the portion located outside lot 4). The plaintiff sought solicitor/client costs.

The Nova Scotia Supreme Court granted Car-Con the certificate of title that it had requested. The court awarded the plaintiff lump sum party and party costs of $50,000 plus disbursements.

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - The plaintiff commenced an action under the Quieting Titles Act - The disputed lands comprised a portion of land and accompanying water lot - The trial judge allowed the application - The judge held that the plaintiff had the superior paper title to lot 3 and lot 4 of Grant 4701 - Alternatively, he had established possessory title based on the doctrine of constructive possession - In the further alternative, he had established possessory title based on adverse possession - The plaintiff sought costs - The Nova Scotia Supreme Court rejected the plaintiff's argument that the "amount involved" was $250,000 because without lots 3 and 4 being a part of his existing lot, the resulting decrease in market value of his property would be at least $250,000 - No evidence supported this alleged decrease - The court also rejected the plaintiff's alternative submission that there was no evidence to support a market value for lots 3 and 4, and the court should proceed to determine the "amount involved" as if it was a claim for a non-monetary amount - The court found that the amount involved for purposes of calculating party-and-party costs was $93,000, based on the assessment notice - See paragraphs 9 to 18.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The plaintiff commenced an action under the Quieting Titles Act - The disputed lands comprised a portion of land and accompanying water lot - The trial judge allowed the application - The judge held that the plaintiff had the superior paper title to lot 3 and lot 4 of Grant 4701 - Alternatively, he had established possessory title based on the doctrine of constructive possession - In the further alternative, he had established possessory title based on adverse possession - The plaintiff sought costs - The Nova Scotia Supreme Court rejected the plaintiff's claim for solicitor/client costs - The court held that assessing party and party costs on Scale 2 and allowing $2,000 for each day of trial under Tariff A would result in an award of $30,250 - However, the plaintiff had reasonably incurred $122,443.65 in fees before HST - The court held that $30,250 was not a substantial contribution to the plaintiff's expense of carrying the proceedings; it was more appropriate to substitute a $50,000 lump sum award (before disbursements) - The court elected not to add HST to the lump sum award - See paragraphs 19 to 30.

Practice - Topic 7136

Costs - Party and party costs - Disbursements - Travelling expenses - General - The plaintiff commenced an action under the Quieting Titles Act - He was successful - In addition to expenses attributable to his counsel, the plaintiff sought recovery of his own out-of pocket expenses throughout the various stages of the action, including travel to and from Montreal - The costs included accommodations at a hotel in Bridgewater, rental car, airfare and other miscellaneous expenses - The defendants argued that the sum of $9,967.50 for the plaintiff's out-of pocket expenses was not recoverable - The Nova Scotia Supreme Court agreed and disallowed the claim - See paragraphs 52 and 53.

Practice - Topic 7137

Costs - Party and party costs - Disbursements - Travelling expenses - Counsel - A successful party's counsel claimed $1,152.39 for mileage, which appeared to be for attendance at discoveries, meetings and trial; hotel accommodations in Bridgewater during the trial of $3,001.30; food, gas and supplies of $1,106.55; and $18.18 for parking, for a total of $5,278.42 - The successful party sought this amount as a disbursement - The Nova Scotia Supreme Court rejected the claim - See paragraphs 34 to 37.

Practice - Topic 7138

Costs - Party and party costs - Disbursements - Computer research - The successful plaintiff claimed the costs of Quicklaw research completed by his counsel in the amount of $152.90 - The defendants argued that law office allocations replacing the standard overheard item of a law library were not recoverable - The Nova Scotia Supreme Court held that it was not prepared to allow an amount for Quicklaw searches - See paragraphs 38 to 40.

Practice - Topic 7140

Costs - Party and party costs - Disbursements - Cost of reports - The plaintiff commenced an action under the Quieting Titles Act - The trial judge allowed the application - The plaintiff claimed the sum of $14,011.42 ($13,671.82 + $339.60) for his expert - The defendants claimed the survey and expert bills were single line entries with no description of the work done and that the total of $14,011.42 was unreasonable - Further, they claimed that they should not have to pay the full amount of the work due to its lasting value to the plaintiff beyond the litigation - The Nova Scotia Supreme Court found that the fees charged were reasonable for the materials produced - Further, the defendants' argument that the bill should be reduced by 40% due to the lasting value to the plaintiff of the survey materials, ignored the fact that they too were obtaining a certificate of title for the remaining portion of the grant as described in the survey - See paragraphs 43 to 48.

Practice - Topic 7150.2

Costs - Party and party costs - Disbursements - GST or HST - [See Practice - Topic 7117 ].

Practice - Topic 7150.4

Costs - Party and party costs - Disbursements - Items not recoverable as disbursements - [See Practice - Topic 7136 , Practice - Topic 7137 and Practice - Topic 7138 ].

Real Property - Topic 5083

Title - Quieting of title - Procedure - The plaintiff commenced an action under the Quieting Titles Act - The disputed lands comprised a portion of land and accompanying water lot - The trial judge allowed the application - The judge held that the plaintiff had the superior paper title to lot 3 and lot 4 of Grant 4701 - Alternatively, he had established possessory title based on the doctrine of constructive possession - In the further alternative, he had established possessory title based on adverse possession - The defendant Car-Con requested a certificate of title for the remaining portion of the water lot included within Grant 4701 (i.e., the portion located outside lot 4) - The Nova Scotia Supreme Court granted the relief - Both the plaintiff and defendants had claimed title to the whole of Grant 4701 which contained the land for which the defendants sought a certificate of title - Pursuant to the motion for directions granted in the quieting of titles application, the adjoining owners to Grant 4701 were served - The only parties who came forward to contest the claim were James and Helen Adams and, after they had conveyed the property to it, Car-Con - See paragraphs 2 and 3.

Real Property - Topic 5096

Title - Quieting of title - Practice - [See Real Property - Topic 5083 ].

Cases Noticed:

Brown v. Metropolitan Authority et al. (1996), 150 N.S.R.(2d) 43; 436 A.P.R. 43 (C.A.), refd to. [para. 9].

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2010), 299 N.S.R.(2d) 42; 947 A.P.R. 42; 2010 NSSC 357, refd to. [para. 21].

Boutcher et al. v. Clearwater Seafoods Limited Partnership (2010), 290 N.S.R.(2d) 293; 920 A.P.R. 293; 2010 NSSC 64, refd to. [para. 22].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34 (S.C.), refd to. [para. 23].

GE Canada Equipment Financing G.P. v. 3068485 Nova Scotia Ltd. et al. (2010), 291 N.S.R.(2d) 328; 922 A.P.R. 328; 2010 NSSC 204, refd to. [para. 24].

Arab v. Izsak, [2009] N.S.R.(2d) Uned. 157; 2009 NSSC 275, refd to. [para. 25].

Western Nova Scotia Consultants Limited v. Canadian Mortgage Brokers and Consultants Limited (1978), 26 N.S.R.(2d) 112; 40 A.P.R. 112 (C.A.), refd to. [para. 35].

DeWolfe v. Ferguson, 2000 CarswellNS 424 (S.C.), refd to. [para. 36].

Cunning v. Doucet, [2009] N.S.R.(2d) Uned. 162; 2009 NSSM 35 (Sm. Cl.), refd to. [para. 39].

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. 43].

MacCormick v. Dewar, [2011] N.S.R.(2d) Uned. 15; 2011 NSSC 10, dist. [para. 46].

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. 53].

Counsel:

Richard Bureau and Adam Crane, for the plaintiff;

Peter Rogers, Q.C., and Erin Fowler (Articled Clerk), for the defendants.

This matter was heard in Halifax, N.S., on October 6, 2011, by Pickup, J., of the Nova Scotia Supreme Court, who delivered the following decision on November 25, 2011.