Flynn v. Halifax (Regional Municipality) et al., (2006) 245 N.S.R.(2d) 177 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 04, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 245 N.S.R.(2d) 177 (SC);2006 NSSC 106

Flynn v. Halifax (2006), 245 N.S.R.(2d) 177 (SC);

    777 A.P.R. 177

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. JN.051

Fabian Flynn and Trudy Flynn (plaintiffs) v. The Halifax Regional Municipality, a municipal body corporate, Donald Williams, James Joseph Dunleavy, Applewood Enterprises Limited, a body corporate, and Shawna Henderson (defendants)

(SH 154747; 2006 NSSC 106)

Indexed As: Flynn v. Halifax (Regional Municipality) et al.

Nova Scotia Supreme Court

LeBlanc, J.

April 4, 2006.

Summary:

The plaintiffs hired a house designer to design an environmentally friendly house with passive solar heating. The plaintiffs hired a contractor to construct the house. The plaintiffs sued the contractor and its sole owner in negligence and contract for damages for, inter alia, defective construction in breach of the contract and the National Building Code. The plaintiffs also claimed in negligence against the municipality, alleging that its employee (building inspector) negligently failed to detect the defects and failed to require them to be remedied.

The Nova Scotia Supreme Court, in a judgment reported (2003), 219 N.S.R.(2d) 345; 692 A.P.R. 345, allowed the action. The contractor, its owner, and the municipality were jointly and severally liable for the repair of the defective 14 foot south wall of the home ($22,280). The contractor and its owner were jointly and severally liable for the repair of the defective slab ($56,200). Deducted from the above amounts were a proportionate share of $30,000 already received by the plaintiffs from the Atlantic Home Warranty Program and $5,000 received in settlement from the home designer. The plaintiffs appealed, submitting that the scope of negligence by the contractor and municipality was broader than found by the trial judge and that the quantum of damages was inadequate. The contractor and its owner cross-appealed. The municipality filed a Notice of Contention challenging the trial judge's determination of the scope of the duty of care owed by it.

The Nova Scotia Court of Appeal, in a judgment reported (2005), 232 N.S.R.(2d) 293; 737 A.P.R. 293, allowed the appeal in part, minimally increasing damages. The cross-appeal was allowed to the extent of finding that the trial judge erred in finding the owner personally liable. It was unnecessary to determine the exact scope of the municipality's duty of care. The matter returned to the trial judge for the determination of costs.

The Nova Scotia Supreme Court awarded the plaintiffs costs of $3,375 against the contractor and municipality jointly and $7,050 against the contractor alone. The municipality was entitled to seek its costs against the contractor, but not the plaintiffs.

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - The plaintiffs hired a contractor to build an environmentally friendly house with passive solar heating - The plaintiffs sued the contractor and its sole owner in negligence and contract for damages for, inter alia, defective construction in breach of the contract and the National Building Code - The plaintiffs also claimed in negligence against the municipality, alleging that its employee (building inspector) negligently failed to detect the defects and failed to require them to be remedied - The contractor and the municipality were jointly and severally liable for the repair of the defective 14 foot south wall of the home ($22,280) - The contractor was liable for the repair of the defective slab ($69,985) - Deducted from the above amounts were a proportionate share of $30,000 already received by the plaintiffs from the Atlantic Home Warranty Program and $5,000 received in settlement from the home designer - The Nova Scotia Supreme Court awarded the plaintiffs costs of $3,375 against the contractor and municipality jointly and $7,050 against the contractor alone, based on amounts involved of $22,280 and $69,985 - Given the complexity of the proceedings, costs were increased to Scale 4 - The court noted that the "amount involved" was not to be reduced by the payments made to the plaintiffs prior to the damage award - The municipality was entitled to seek its costs against the contractor, but not the plaintiffs.

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - [See Practice - Topic 7003 ].

Cases Noticed:

Leddicote v. Nova Scotia (Attorney General) et al. (2002), 203 N.S.R.(2d) 271; 635 A.P.R. 271 (C.A.), refd to. [para. 23].

Ledicotte v. Nova Scotia (Attorney General) et al. (2002), 206 N.S.R.(2d) 196; 645 A.P.R. 196 (C.A.), refd to. [para. 23].

Skeffington v. McDonough and Vanamburg (1992), 114 N.S.R.(2d) 181; 313 A.P.R. 181 (T.D.), refd to. [para. 25].

Campbell-MacIsaac et al. v. Deveaux et al. (2005), 230 N.S.R.(2d) 304; 729 A.P.R. 304 (S.C.), refd to. [para. 27].

Windsor v. Poku (2003), 214 N.S.R.(2d) 88; 671 A.P.R. 88 (S.C.), refd to. [para. 28].

Kaye v. Campbell (1984), 65 N.S.R.(2d) 173; 147 A.P.R. 173 (C.A.), refd to. [para. 28].

Bush v. Air Canada (1992), 109 N.S.R.(2d) 91; 297 A.P.R. 91 (C.A.), refd to. [para. 40].

Robb (K.W.) & Associates Ltd. v. Wilson (1998), 169 N.S.R.(2d) 201; 508 A.P.R. 201 (C.A.), refd to. [para. 41].

Counsel:

Maureen Walden-Ryan (filed briefs only), for the plaintiffs;

Peter Darling and Matthew Williams, for the defendants;

James Dunleavy, on behalf of Applewood Enterprises Ltd.

This matter was heard before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on April 4, 2006.