Gammell v. Sobeys Group Inc., (2011) 306 N.S.R.(2d) 61 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 13, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 306 N.S.R.(2d) 61 (SC);2011 NSSC 190

Gammell v. Sobeys Group Inc. (2011), 306 N.S.R.(2d) 61 (SC);

    968 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. AU.042

Shannon Dawn Gammell (plaintiff) v. Sobeys Group Inc., a body corporate (defendant)

(Bwt. No. 192365; 2011 NSSC 190)

Indexed As: Gammell v. Sobeys Group Inc.

Nova Scotia Supreme Court

Stewart, J.

July 13, 2011.

Summary:

The plaintiff suffered a slip and fall in a Sobeys' store in 1998. Gammell sued Sobeys in 2003. Both liability and damages were in issue. The trial was scheduled to commence October 25, 2010. Offers, inclusive of offers to settle under the 1972 Civil Procedure Rules (1972 Rules) and informal offers were made by both parties. Sobeys delivered an offer to settle under rule 41A of the 1972 Rules on July 18, 2007.

The Nova Scotia Supreme Court held, inter alia, that the rule 41A offer was not a "formal offer" under the new regime in rules 10.05 to 10.10 of the Civil Procedure Rules (N.S.), 2009 and any entitlement Sobeys might have to costs was governed by the 1972 Rules. The court awarded the plaintiff costs up to the date of the offer ($1,500), plus disbursements fixed at $2,578.57. The court resorted to its discretion to award the defendant lump sum costs ($6,500) where the basic award under the tariff was inadequate to serve the principle of substantial but incomplete indemnity. The court also awarded the defendant $4,127.64 in disbursements. Further, the court awarded the defendant $2,500 for an interprovincial motion for subpoena plus $248 disbursements. With set-off, the defendant was entitled to recover $5,921 from the plaintiff.

Evidence - Topic 1656

Hearsay rule - Hearsay rule exceptions and exclusions - Affidavits - General - In his brief and summation, counsel for the plaintiff made arguments that his client had not needlessly delayed in accepting an offer to settle - The Nova Scotia Supreme Court stated that "The law is clear that a judge should not consider evidence not contained in an affidavit. Affidavits afford counsel the opportunity to cross-examine which, in turn, impacts on the value, reliability, and relevance of the evidence ..." - See paragraph 25.

Evidence - Topic 1656

Hearsay rule - Hearsay rule exceptions and exclusions - Affidavits - General - In his brief and summation, counsel for the plaintiff made arguments that his client had not needlessly delayed in accepting an offer to settle - The Nova Scotia Supreme Court stated that the reasons and comments made by counsel in his brief and summation were unsworn hearsay or facts not proven by affidavit - The facts asserted did not appear in any affidavit filed - They were inadmissible and the plaintiff had, by citing same, adduced no evidence for consideration - Alerted to the issue before the hearing, no request for an adjournment was sought - Based on the defendant's evidence, the court found that the plaintiff delayed needlessly - See paragraphs 24 to 26.

Practice - Topic 6

General principles and definitions - Application of practice rules - Gamell suffered a slip and fall in a Sobeys' store in 1998 - Gammell sued Sobeys in 2003 - Both liability and damages were in issue - The trial was scheduled to commence October 25, 2010 - Offers, inclusive of offers to settle under the 1972 Civil Procedure Rules (1972 Rules) and informal offers were made by both parties - Sobeys delivered an offer to settle under rule 41A of the 1972 Rules on July 18, 2007 - The Nova Scotia Supreme Court held that the rule 41A offer was not a "formal offer" under the new regime in rules 10.05 to 10.10 of the Civil Procedure Rules (N.S.), 2009 - Rule 92 (Transition) did not assist Sobeys - The rule 41A offer was a step taken before January 1, 2009, and the acceptance of a rule 41A offer was not dealt with in the new Rules - Therefore, any entitlement Sobeys might have to costs was governed by the 1972 Rules - See paragraphs 1 to 15.

Practice - Topic 3585

Evidence - Subpoena - Issued for service in another province - General - The defendant brought an interprovincial motion for subpoena when the plaintiff refused to admit a one page letter from her family doctor by agreement - The Nova Scotia Supreme Court awarded the defendant $2,500 plus $248 disbursements - The amount addressed not only the time involved and urgency element of the motion, but also the unreasonable focus both on a requested trade-off and the insistence on subpoenaing the doctor, as well as unwarranted references to conduct - See paragraphs 49 to 85.

Practice - Topic 7086

Costs - Party and party costs - Witness fees and costs of preparation for trial or appeal - Witness fees (incl. conduct money) - [See Practice - Topic 3585 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - The Nova Scotia Supreme Court stated that "Lump sum costs are typically awarded where the basic award of costs under the tariff would be inadequate to serve the principle of a substantial but incomplete indemnity." - See paragraph 40.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7243 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - [See Practice - Topic 6 ].

Practice - Topic 7241

Costs - Party and party costs - Offers to settle - General (incl. what constitutes and validity) - The Nova Scotia Supreme Court agreed that "the basic proposition that a party is always under an obligation prior to trial to pay more, failing which it will be penalized in costs, is without merit." - See paragraph 28.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - Gamell suffered a slip and fall in a Sobeys' store in 1998 - Gammell sued Sobeys in 2003 - Both liability and damages were in issue - The trial was scheduled to commence October 25, 2010 - Offers, inclusive of offers to settle under the 1972 Civil Procedure Rules and informal offers were made by both parties - Sobeys delivered an offer to settle under rule 41A of the 1972 Rules on July 18, 2007 - The plaintiff accepted the offer a few days before trial - The Nova Scotia Supreme Court held that the rule 41A offer was not a "formal offer" under the Civil Procedure Rules (N.S.), 2009 and any entitlement Sobeys might have to costs was governed by the 1972 Rules - The court awarded the plaintiff costs up to the date of the offer ($1,500), plus disbursements fixed at $2,578.57 - The court resorted to its discretion to award the defendant lump sum costs ($6,500) where the basic award under the tariff was inadequate to serve the principle of substantial but incomplete indemnity - The delay in accepting the offer to settle was unwarranted, unnecessary and purpose orientated - The court also awarded the defendant $4,127.64 in disbursements - See paragraphs 1 to 48.

Words and Phrases

Formal offer - The Nova Scotia Supreme Court discussed the meaning of this phrase as found in the Civil Procedure Rules (N.S.), 2009 - See paragraphs 7 to 15.

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 7].

Goode v. Oursen (No. 3) (1991), 105 N.S.R.(2d) 389; 284 A.P.R. 389 (T.D.), refd to. [para. 18].

Annand v. Cox (Peter M.) Enterprises Ltd. (1992), 111 N.S.R.(2d) 196; 303 A.P.R. 196 (T.D.), dist. [para. 18].

Rosero v. Huang et al. (1999), 96 O.T.C. 302 (Sup. Ct.), consd. [para. 21].

Halifax (Regional Municipality) v. Nicholson (2009), 283 N.S.R.(2d) 312; 900 A.P.R. 312 (C.A.), refd to. [para. 25].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34 (S.C.), refd to. [para. 34].

Awan v. Cumberland Health Authority et al. (2009), 283 N.S.R.(2d) 107; 900 A.P.R. 107 (S.C.) refd to. [para. 37].

Roshanimeydan v. Mina Developments Ltd. (2006), 241 N.S.R.(2d) 139; 767 A.P.R. 139; 2006 NSSC 39, refd to. [para. 38].

Statutes Noticed:

Civil Procedure Rule (N.S.), 1999, rule 10.05 [para. 8 et seq.]; rule 10.06, rule 10.07 [para. 9]; rule 10.08 [para. 7 et seq.]; rule 10.09 [para. 14]; rule 77.02(2) [para. 13].

Counsel:

Mark Raftus and Michael Dull, for the plaintiff;

David Miller, Q.C., and Nancy Murray, Q.C., for the defendant.

This matter was heard in Bridgewater, Nova Scotia, on January 13, 2011, by Stewart, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 13, 2011.