Garner v. Bank of Nova Scotia, (2016) 372 N.S.R.(2d) 300 (SC)

JudgeD.K. Smith, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMarch 18, 2016
JurisdictionNova Scotia
Citations(2016), 372 N.S.R.(2d) 300 (SC);2016 NSSC 105

Garner v. BNS (2016), 372 N.S.R.(2d) 300 (SC);

    1172 A.P.R. 300

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.031

Christopher Taylor Garner (plaintiff) v. The Bank of Nova Scotia (defendant)

(Hfx No. 354371; 2016 NSSC 105)

Indexed As: Garner v. Bank of Nova Scotia

Nova Scotia Supreme Court

D.K. Smith, J.

April 18, 2016.

Summary:

The plaintiff was employed by the defendant bank for approximately 35 years. He filed a human rights complaint (age discrimination), when he was unsuccessful in getting a promotion. He subsequently withdrew the complaint and sued the bank, alleging age discrimination, constructive dismissal and tortious interference with contractual relations. The bank offered to continue the employment relationship if the plaintiff withdrew his action. The plaintiff refused and the bank terminated the plaintiff's employment without further notice. The plaintiff amended his pleadings to add a claim for wrongful dismissal.

The Nova Scotia Supreme Court, in a decision reported 360 N.S.R.(2d) 200; 1135 A.P.R. 200, first determined that it had jurisdiction to deal with the matter. The court held that the plaintiff was not constructively dismissed, but was wrongfully dismissed by the bank. The plaintiff was entitled to a notice period of 24 months. The court assessed damages. Thereafter, costs issues arose.

The Nova Scotia Supreme Court dealt with the costs issues accordingly.

Practice - Topic 7029.7

Costs - Party and party costs - Entitlement to - Effect of failure to make settlement offer - The plaintiff sued his employer (defendant) alleging discrimination, constructive dismissal and wrongful dismissal - The defendant offered to continue the employment relationship if the plaintiff withdrew his action - The plaintiff refused - The trial judge held that the plaintiff was not discriminated against or constructively dismissed, but was wrongfully dismissed and entitled to a notice period of 24 months - Costs were in issue - The plaintiff claimed that the defendant's refusal to enter into any meaningful settlement process or make any reasonable settlement offers should be taken into account when awarding party and party costs - The Nova Scotia Supreme Court held that the defendant's decision not to participate in a settlement conference did not warrant an award of costs in favour of the plaintiff - Such conferences, while an extremely useful tool in helping to resolve litigation, were voluntary in Nova Scotia - Nor was the court satisfied that the defendant's refusal to offer the plaintiff any money in settlement of the action, on its own, justified an award of costs against the defendant - See paragraphs 51 to 59.

Practice - Topic 7166

Costs - Party and party costs - Liability for - Circumstances affecting liability - [See Practice - Topic 7029.7 ].

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - The plaintiff sued his employer (defendant) alleging discrimination, constructive dismissal and wrongful dismissal - The trial judge held that the plaintiff was not discriminated against or constructively dismissed, but was wrongfully dismissed - Costs were in issue - The Nova Scotia Supreme Court noted that although the plaintiff was successful on his wrongful dismissal claim, the defendant was successful on the issues that took up the majority of time at trial - The court held that this was an appropriate case for each of the parties to bear their own costs - However, the court awarded the plaintiff $20,000 to take into account the written offers of settlement made prior to trial - The court noted that when considering the issue of quantum, the court had to recognize that the plaintiff did not receive a favourable judgment as defined by the rules - Therefore, any amount that was awarded to him in relation to the written offers of settlement should be less that he would have received if he had been awarded tariff costs and obtained a favourable judgment - See paragraphs 42 to 71.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - The plaintiff was employed by the defendant bank for approximately 35 years - He sued the bank, alleging constructive dismissal - The bank offered to continue the employment relationship if the plaintiff withdrew his action - The plaintiff refused and the bank terminated the plaintiff's employment without further notice - The plaintiff amended his pleadings to add a claim for wrongful dismissal - The trial judge held that the plaintiff was not constructively dismissed, but was wrongfully dismissed and entitled to a notice period of 24 months - The court assessed damages - The plaintiff sought costs on a solicitor and client basis - The Nova Scotia Supreme Court held that there was no basis on the facts of the case to award solicitor and client costs - There were no exceptional circumstances - There was no reprehensible, scandalous or outrageous conduct - Failure to make a reasonable offer to settle, did not, in the absence of some wrongdoing, warrant an award of solicitor client costs - See paragraphs 37 to 41.

Practice - Topic 7470.20

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Offer to settle (incl. failure to make reasonable offer) - [See Practice - Topic 7454 ].

Counsel:

Kevin A. MacDonald, for the plaintiff;

G. Grant Machum and Jennifer L. Taylor, for the defendant.

This costs matter was heard in Halifax, N.S., on March 18, 2016, before D.K. Smith, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 18, 2016.

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