Fougere v. Blunden Construction Ltd. et al., (2013) 337 N.S.R.(2d) 285 (SC)

• Judge: Murray, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 12, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 337 N.S.R.(2d) 285 (SC);2013 NSSC 412

Fougere v. Blunden Constr. Ltd. (2013), 337 N.S.R.(2d) 285 (SC);

    1067 A.P.R. 285

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.031

William Fougere (plaintiff) v. Blunden Construction Limited (defendant) and Fowler Bauld & Mitchell Ltd. (third party)

(Hfx. No. 288177; 2013 NSSC 412)

Indexed As: Fougere v. Blunden Construction Ltd. et al.

Nova Scotia Supreme Court

Murray, J.

November 26, 2013.

Summary:

The third party brought a motion for summary judgment to dismiss the third party claim against it by the defendant. The motion was dismissed. The defendant sought costs on the motion against the third party in the amount of $7,500, inclusive of disbursements.

The Nova Scotia Supreme Court awarded the defendant costs in the amount of $5,500, inclusive of disbursements.

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - [See Practice - Topic 7641 ].

Practice - Topic 7002

Costs - Party and party costs - General principles and definitions - Chambers applications - [See Practice - Topic 7641 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7641 ].

Practice - Topic 7641

Costs - The tariffs, schedules etc. - General - The plaintiff sought damages against the defendant, Blunden Construction Ltd., for negligence, alleging that he suffered serious personal injury as a result of exposure to dust particles during the construction and installation of an elevator at a high school - Blunden Construction brought a third party claim against Fowler, Bauld and Mitchell Ltd. (FBM), the architectural firm retained to oversee the project - FBM moved for summary judgment to dismiss the third party claim - The motion was dismissed - Blunden Construction sought costs on the motion in the amount of $7,500, inclusive of disbursements - FBM pointed out that, for chambers motions, the Rules stated that the guidelines in Tariff C "shall apply" - The Nova Scotia Supreme Court held that the Tariff amount of $750-$1,000 would not "do justice" as between the parties - The presence of special circumstances made it just and appropriate to depart form the Tariff - The court considered the complexity of the matter, the importance of the matter to the parties, and the amount of effort involved - Rule 77.08 stated that a judge could award a lump sum instead of Tariff costs - The court was satisfied that a substantial, but incomplete indemnity would represent approximately one third of the defendant's actual expenses - That would equate to a lump sum cost award of $5,500 - The court awarded Blunden Construction costs in the amount of $5,500, inclusive of disbursements.

Cases Noticed:

Saturley v. Lund et al. (2006), 249 N.S.R.(2d) 103; 792 A.P.R. 103; 2006 NSSC 331, refd to. [para. 15].

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, refd to. [para. 16].

Mills et al. v. Drum Head Estates Ltd. et al. (2013), 332 N.S.R.(2d) 19; 1052 A.P.R. 19; 2013 NSSC 214, refd to. [para. 20].

Coady v. Burton Canada Co. et al. (2013), 333 N.S.R.(2d) 348; 1055 A.P.R. 348; 2013 NSCA 95, refd to. [para. 30].

Counsel:

Gavin Giles, Q.C., for Blunden Construction Limited;

James P. Boudreau, for Fowler, Bauld and Mitchell Ltd.;

Sean MacDonald, for William Fougere.

This matter was heard by written submissions on July 12, 2013, by Murray, J., of the Nova Scotia Supreme Court, who delivered the following decision on November 26, 2013.