Finn v. St. John's, (2003) 230 Nfld. & P.E.I.R. 304 (NFTD)

• Judge: Mercer, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 17, 2003
• Jurisdiction: Newfoundland and Labrador
• Citations: (2003), 230 Nfld. & P.E.I.R. 304 (NFTD);2003 NLSCTD 141

Finn v. St. John's (2003), 230 Nfld. & P.E.I.R. 304 (NFTD);

    682 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2003] Nfld. & P.E.I.R. TBEd. OC.017

James J. Finn (plaintiff) v. The City of St. John's (defendant)

(1993 St. J. No. 2597; 2003 NLSCTD 141)

Indexed As: Finn v. St. John's (City)

Newfoundland and Labrador Supreme Court

Trial Division

Mercer, J.

October 17, 2003.

Summary:

Finn's employment with the City of St. John's ended. Finn sued the City. At issue, inter alia, was the admissibility of the par­ties' conduct and communications respecting negotiations between the parties.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 153 Nfld. & P.E.I.R. 223; 475 A.P.R. 223, held that the communications were admissible for limited purposes.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 186 Nfld. & P.E.I.R. 197; 564 A.P.R. 197, granted Finn judgment and awarded damages in lieu of notice. The City applied to have the decision amended or varied respecting vaca­tion pay and prejudgment interest.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 189 Nfld. & P.E.I.R. 77; 571 A.P.R. 77, allowed the application with respect to vacation pay. Finn appealed. The City cross-appealed.

The Newfoundland and Labrador Court of Appeal, in a decision reported at 220 Nfld. & P.E.I.R. 245; 657 A.P.R. 245, allowed the appeal and cross-appeal in part. The court filed an order subsequent to its decision. Finn applied for an interpretation of the order.

The Newfoundland and Labrador Court of Appeal, in a decision reported at 226 Nfld. & P.E.I.R. 102; 673 A.P.R. 102 determined the issue accordingly. The City, which had made an offer to settle before trial, applied for an order under rule 20A that it be awarded its costs from the date of its offer to settle.

The Newfoundland and Labrador Supreme Court, Trial Division, allowed the applica­tion.

Interest - Topic 5104

Interest as damages (prejudgment interest) - Breach of contract - Employment con­tracts - The Newfoundland and Labrador Supreme Court, Trial Division, stated that "A judgment awarding damages for wrong­ful dismissal, which are calculated on lost wages and benefits, is, for the purposes of s. 4 of the Judgment Interest Act, a judg­ment for 'income lost'." - The court held that pension contributions were "income lost" - See paragraphs 22 to 23.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Rules 20A.08(1) and (2) provided for cost conse­quences where a plaintiff and defendant, respectively, obtained a judgment that was not more favourable than an offer made by the other party - The Newfoundland and Labrador Supreme Court, Trial Division, held that there was no principled basis for distinguishing between applications under rules 20A.08(1) and (2) - For each the rule should be that a party who rejected a reasonable offer, and fared no better at trial, should absorb the post-offer cost of the other party - Generally, a party who made a reasonable offer to settle should receive a full indemnity for the post-offer costs of the proceeding, where the judg­ment was no more favourable than the offer to settle - See paragraph 63.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff successfully sued the defendant for wrongful dismissal - The defendant, which had made an offer to settle before trial, applied for an order under rule 20A that it be awarded its costs from the date of the offer - The Newfoundland and Labrador Supreme Court, Trial Division, held that the plaintiff did not receive a judgment more favourable than the offer - The court awarded the defendant solicitor and client costs from the date of the offer, including the costs of the application - See paragraphs 50 to 66.

Practice - Topic 7244

Costs - Party and party costs - Offers to settle - Amount recovered - Calculation - [See all Practice - Topic 7246 ].

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The plaintiff suc­cessfully sued the defendant - The defend­ant, which had made an offer to settle before trial, applied for an order under rule 20A that it be awarded its costs from the date of the offer - The offer stated that the taxed costs awarded to the defendant in two interlocutory proceedings in the action would be deducted from the offer - The Newfoundland and Labrador Supreme Court, Trial Division, held that the defen­dant's offer had not been reduced in value by the amount of those costs - Their deduction represented the liquidation of a liability owed by the plaintiff to the defen­dant - The liquidation of that liability was of equal value to the plaintiff as the receipt of cash in a like amount - See paragraph 9.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The Newfoundland and Labrador Supreme Court, Trial Divi­sion, stated that "in the comparison of a judgment with an offer to settle, in an application under Rule 20A.08(3), interest should be calculated to the same date and in the same manner for both the judgment and the offer to settle. It should not matter whether the interest is calculated to the date of the offer to settle or if post-offer interest to the date of judgment, deter­mined in accordance with the Judgment Interest Act, is added to the offer to settle." - See paragraph 16.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The Newfoundland and Labrador Supreme Court, Trial Divi­sion, held that costs awarded to a success­ful plaintiff were not to be included when determining whether the judgment was no more favourable than an offer by the defendant - See paragraphs 10 to 11.

Practice - Topic 7246

Costs - Party and party costs - Offers to settle - Whether judgment equal to or more favourable than offer - The plaintiff suc­cessfully sued the defendant for wrongful dismissal - The defendant, which had made an offer to settle before trial, applied for an order under rule 20A that it be awarded its costs from the date of the offer - The Newfoundland and Labrador Supreme Court, Trial Division, determined the amount of the judgment, including the value of a pension option - The court credited the defendant with certain items that had been paid out prior to trial as it would be contrary to law to hold that the judgment granted the plaintiff a right to double recovery - See paragraphs 24 to 46.

Practice - Topic 7247

Costs - Party and party costs - Offers to settle - Costs to unsuccessful defendant - [See second Practice - Topic 7243 ].

Practice - Topic 7451.1

Costs - Solicitor and client costs - Entitle­ment to solicitor and client costs - Unsuc­cessful party - [See second Practice - Topic 7243 ].

Cases Noticed:

Mega Roofing and Waterproofing Ltd. v. Dobbin (N.D.) Ltd. et al. (1996), 143 Nfld. & P.E.I.R. 14; 448 A.P.R. 14 (Nfld. T.D.), appld. [para. 11].

Evans v. Newfoundland et al. (1999), 186 Nfld. & P.E.I.R. 137; 564 A.P.R. 137 (Nfld. T.D.), refd to. [para. 15].

Squires v. Corner Brook Pulp and Paper Ltd. and Manuel (1999), 175 Nfld. & P.E.I.R. 202; 537 A.P.R. 202 (C.A.), refd to. [para. 22].

Janke v. Cenalta Oilwell Servicing Ltd. et al., [1997] 3 W.W.R. 406; 152 Sask.R. 32; 140 W.A.C. 32 (C.A.), refd to. [para. 22].

Voogt v. Atlas Construction Inc. et al. (1997), 148 Nfld. & P.E.I.R. 264; 464 A.P.R. 264 (Nfld. T.D.), refd to. [para. 54].

Mahoney v. Curwood Transport Ltd. (1998), 169 Nfld. & P.E.I.R. 355; 521 A.P.R. 355 (Nfld. T.D.), refd to. [para. 55].

Anthony v. Robin Hood Multifoods Inc. (2001), 203 Nfld. & P.E.I.R. 268; 610 A.P.R. 268 (Nfld. T.D.), refd to. [para. 56].

Grandy v. Peninsula Car and Truck Centre Ltd. et al. (2001), 208 Nfld. & P.E.I.R. 328; 624 A.P.R. 328 (Nfld. T.D.), refd to. [para. 58].

Kennedy Estate et al. v. Cluney (2001), 208 Nfld. & P.E.I.R. 333; 624 A.P.R. 333 (Nfld. T.D.), refd to. [para. 59].

Holloway v. Holloway (2001), 199 Nfld. & P.E.I.R. 1; 600 A.P.R. 1 (Nfld. C.A.), refd to. [para. 60].

Guarantee Co. of North America v. Beasse et al. (1993), 139 A.R. 241; 14 C.P.C.(3d) 182 (Q.B.), refd to. [para. 61].

Statutes Noticed:

Rules of Court (Nfld.), Supreme Court Rules, rule 20A.08 [para. 3].

Authors and Works Noticed:

Waddams, Stephen M., The Law of Dam­ages (2nd Ed. 1992) (Looseleaf), para. 15.910 [para. 34].

Counsel:

John R. Sinnott, Q.C., for the plaintiff;

Augustus G. Lilly, Q.C., for the defendant.

This matter was heard on July 3, 4 and 22, 2003, by mercer, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on October 17, 2003.