Donovan v. Gunn, 2016 NSSC 234

• Judge: Murray, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 15, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSSC 234;(2016), 377 N.S.R.(2d) 11 (SC)

Donovan v. Gunn (2016), 377 N.S.R.(2d) 11 (SC);

    1187 A.P.R. 11

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.014

Jessie Donovan, Amos Donovan, Ann Marie MacDonald (plaintiffs) v. James D. Gunn and Sharon A. Gunn (defendants)

(Syd. No. 378962; 2016 NSSC 234)

Indexed As: Donovan v. Gunn

Nova Scotia Supreme Court

Murray, J.

March 15, 2016.

Summary:

The boundary between the plaintiffs' and the defendants' two properties was in dispute. The plaintiffs had owned their property since 1946. The defendants purchased theirs in 2003. In 2006, the defendants completed a survey according to which there was a triangular "remnant lot" between the two properties. The defendants obtained a quit claim deed to the remnant lot and informed the plaintiffs of the survey's results. The plaintiffs initially gave the defendants permission to construct a roadway to access the remnant lot (which the defendants promised to remove and return the property to its natural state). However, in July 2010, the defendants refused to grant the plaintiffs an easement or any other arrangement. In August 2011, the plaintiffs informed the defendants that they "strongly disagreed" with the survey and retained counsel who asked the defendants not to proceed with improvements. The defendants used the entire remnant lot to construct a geothermal piping system to service their new home. The plaintiffs sued.

The Nova Scotia Supreme Court, in a decision reported at (2015), 366 N.S.R.(2d) 282; 1154 A.P.R. 282, found that there was no remnant lot and that the plaintiffs owned that property. The plaintiffs were granted an injunction requiring the defendants to vacate the property and a declaration that the defendants had no title to the remnant lot. The defendants were ordered to take the necessary steps to rectify the property data to reflect the plaintiffs' ownership. The defendants were also liable in trespass. The parties were invited to make submissions regarding damages and costs.

The Nova Scotia Supreme Court awarded the plaintiffs costs of $53,000, after set-off. The court also awarded the plaintiffs disbursements of $11,674.45, consisting of solicitors' disbursements of $4,459.95 and survey costs of $7,214.50. The court also awarded the plaintiffs damages of $5,000 for trespass.

Damage Awards - Topic 550

Torts - Injury to land and buildings - Trespass - [See Damages - Topic 4212 ].

Damages - Topic 4212

Torts affecting land and buildings - Normal measure - Trespass - A trial judge found that the plaintiffs had made out their claim in trespass as the lawful owners of a triangular lot between the parties' properties - The defendants encroached upon the lot by cutting trees, installing geo-thermal piping, and generally taking control of the lot - The Nova Scotia Supreme Court stated that "The parties are in agreement as to the law of damages for trespass. Both have agreed there is a 'mild rule' and a 'severe rule'. Which rule is appropriate in each case depends on the circumstances and in particular the conduct of the trespasser. The mild rule applies when the actions of the trespasser are genuine and based on an honest mistake as to ownership. The severe rule is reserved for cases where the conduct is wilful and fraudulent." - The court decided not to apply the severe rule, because "While the actions were deliberate, they were not wilful in the sense of knowingly committing a wrong. Also, I have granted an injunction that the encroachment be removed, with the land being returned to its original state prior to the Defendants' entry. This will be a significant cost to the Defendants." - The court decided that while damages should not be nominal they should be at the low end of the range - The $100 in damages suggested by the defendants did not compensate the plaintiffs adequately for interference, anguish and stress - The court awarded $5,000 in damages - See paragraphs 147 to 164.

Practice - Topic 7020

Costs - Party and party costs - Entitlement to - Successful party - General principles - Successful plaintiffs sought costs - The Nova Scotia Supreme Court stated that "Under Rule 77 the Plaintiffs are entitled to costs, as the successful party. Rule 77 states that a court may make any order as to costs that will 'do justice' as between the parties. The underlying principle is that a successful party shall be entitled to a substantial but incomplete indemnity of the actual costs of the litigation." - The court listed 13 principles that might be taken from rule 77 - Further, under Tariff A, the length of the trial was an additional factor in determining costs - See paragraphs 4, 5 and 25 to 27.

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - Successful plaintiffs sought costs - The Nova Scotia Supreme Court stated that "While they are not determinative, the legal fees are a consideration as they must be, to arrive at what is substantial contribution but incomplete indemnity of the Plaintiffs' legal costs [rule 77]." - See paragraph 112.

Practice - Topic 7020.1

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Quantum - The plaintiffs sought a declaration they owned certain land - The defendants contested the plaintiffs' ownership on the basis of a survey and Quit Claim Deed held by the defendants - Each party had its own expert land surveyor - The trial judge accepted the opinion of the plaintiffs' surveyor - The plaintiffs sought costs of the trial which lasted 11.5 days, including a view taken by the court for one half day - The total legal fees before disbursements and HST were $99,996 - Total disbursements were $12,474.45 - The land was valued at $5,800 for assessment purposes - Using that amount under Tariff A Basic Scale would result in a $4,000 reimbursement, plus $2,000 per day ($25,000), for a total of $27,000 - The plaintiffs requested that a lump sum be added to or made in substitution of an amount calculated on the basis of Tariff A - They sought $60,000 plus disbursements - The Nova Scotia Supreme Court found that the case was a non-monetary case of complexity and importance - It involved a dispute over land, a parcel larger in size than presently owned by the defendants with water frontage - It contained the heating system for the defendants' home - The existence of the piping would severely limit the use and value of the lot for the plaintiffs, even with an easement - While there was no appraisal, its value was far in excess of the assessed value - Using that value as the amount involved, resulted in a cost award "so low as to be manifestly unjust" - Even if an appraised value were given, land could have a significant intangible value, such as where it had been owned and cherished for decades - The court exercised its discretion pursuant to Civil Procedure Rule 77.08 and ordered a lump sum of $60,000 - From that amount, the court ordered a $7,000 set-off, $3,000 of which was for additional work which proved unnecessary - An additional $3,000 was in recognition of the efficiency of the defendants' counsel in its direct and cross-examination - $1,500 per day for two days served the principle in rule 1.01, that every proceeding was to be conducted in a speedy, just and efficient manner - These factors might be considered under rule 77.07 (to increase or decrease the Tariff amount) but also in awarding a lump sum amount under rule 77.08 - In addition to complexity, importance, and the length of the trial, these and other factors were part of a generalized assessment - A further set-off of $1,000 was awarded in recognition of the defendants' discontinuance of their counterclaim - The court also awarded the plaintiffs their reasonable and necessary disbursements, in the amount of $11,674.45 - The court disallowed a $800 fee for a witness who was never called - While he had to be present "just in case", requiring the defendants to pay his account did not do justice in the circumstances - See paragraphs 95 to 146.

Practice - Topic 7029.3

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Delay or prolonging proceedings -The Nova Scotia Supreme Court stated that "there are very few restrictions on cross-examination. Counsel should not be restricted for fear of cost consequences. Objections at trial are the appropriate method of dealing with any such delay." - See paragraph 61.

Practice - Topic 7086

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Witness fees (incl. conduct money) - [See second Practice - Topic 7020.1 ].

Practice - Topic 7116

Costs - Party and party costs - Special orders - Gross or lump sum in addition to party and party costs - [See first Practice - Topic 7117 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - Successful plaintiffs suggested that where the Tariff was inadequate to provide a substantial but incomplete indemnity, a lump sum might be added to achieve a just cost award - The Nova Scotia Supreme Court rejected the suggestion - The court stated that "It should be noted that Rule 77.08 states that a lump sum may be awarded 'instead' of an award under the Tariff. This suggests that a Tariff award should not be combined with a lump sum. There is broad discretion so long as it is judicially exercised. It is not so broad as to allow a cost amount to be arrived at, by arbitrarily 'plucking' a figure from the air." - See paragraphs 77 to 81.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See second Practice - Topic 7020.1 ].

Counsel:

Hugh MacIsaac, for the plaintiffs;

Murray Hannem, for the defendants;

Anna Manley, for the defendants.

This matter was heard on January 14 and 15, 2016, by Murray, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 15, 2016.