Finlayson Estate, Re,

• Jurisdiction: Nova Scotia
• Judge: O'Hara
• Neutral Citation: 2009 NSSM 1
• Citation: (2009), 275 N.S.R.(2d) 87 (SmCl),2009 NSSM 1,275 NSR(2d) 87,(2009), 275 NSR(2d) 87 (SmCl),275 N.S.R.(2d) 87
• Date: 09 December 2008
• Court: Small Claims Court of Nova Scotia (Canada)

Finlayson Estate, Re (2009), 275 N.S.R.(2d) 87 (SmCl);

    877 A.P.R. 87

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.066

Margaret Elaine Brooks (applicant) v. Estate of Margaret Finlayson (respondent)

(SCCH 304766; 2009 NSSM 1)

Indexed As: Finlayson Estate, Re

Nova Scotia Small Claims Court

O'Hara, Adjudicator

January 27, 2009.

Summary:

The Nova Scotia Supreme Court, in a judgment reported [2008] N.S.R.(2d) Uned. 30, resolved a trust claim respecting the ownership of certain shares. The plaintiff was awarded her costs, to be agreed upon or taxed, but the order was silent as to whether costs were to be taxed by the Supreme Court or by the Nova Scotia Small Claims Court, sitting as a "taxing master".

The Nova Scotia Small Claims Court, sitting as a taxing master, ruled that it lacked jurisdiction to fix party and party costs arising out of a Supreme Court trial. Its jurisdiction was limited to reviewing disbursements.

Courts - Topic 6204.5

Provincial courts - Nova Scotia - Small Claims Court - Jurisdiction - Taxation of costs - The plaintiff was successful in a Supreme Court proceeding and was awarded her costs, to be agreed upon or taxed - The order was silent as to which court was to tax costs - The Nova Scotia Small Claims Court, sitting as a taxing master, held that it lacked jurisdiction to fix party and party costs arising out of a Supreme Court trial - In interpreting the Civil Procedure Rules respecting costs, particularly rules 63.04 and 63.27A, the court concluded that party and party costs had to be taxed by the Supreme Court, while solicitor and client costs were to be taxed by a taxing officer (either the Supreme Court or the Small Claims Court sitting as a taxing master) - The court's jurisdiction, in this case, was limited to reviewing disbursements - The court queried whether a Supreme Court judge could give a taxing master authority to tax party and party costs with a clear direction in the costs order - The issue was not resolved as there was no such clear direction in the order.

Practice - Topic 7601

Costs - Taxation of costs - General - [See Courts - Topic 6204.5 ].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 1.05(ab) [para. 11]; 63.04(1) [para. 13]; rule 63.04(2) [para. 14]; rule 63.27A [para. 15].

Small Claims Court Act, R.S.N.S. 1989, c. 430, sect. 9A(1) [para. 11].

Counsel:

William L. Ryan, Q.C., for the applicant;

Respondent not appearing.

This matter was heard on December 9, 2008, before O'Hara, Adjudicator, of the Nova Scotia Small Claims Court, who delivered the following judgment on January 27, 2009.