Giffin v. Soontiens et al., 2012 NSSC 354

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 07, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 354;(2012), 322 N.S.R.(2d) 325 (SC)

Giffin v. Soontiens (2012), 322 N.S.R.(2d) 325 (SC);

    1021 A.P.R. 325

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. OC.018

Gordon Giffin (plaintiff) v. Nicole Soontiens, Ilona MacAlpine, XL Electric Limited, a body corporate, Huntec Limited, a body corporate, and CNCA Holdings Limited, a body corporate (defendants)

(Hfx. No. 292594; 2012 NSSC 354)

Indexed As: Giffin v. Soontiens et al.

Nova Scotia Supreme Court

Moir, J.

October 12, 2012.

Summary:

The plaintiff was successful in his primary claim, which was based on shareholder oppression (see 310 N.S.R.(2d) 81; 983 A.P.R. 81). The plaintiff sought solicitor-and-client costs. The defendants sought costs, or reductions in a party and party award against them, because of various alleged "misconduct" of the plaintiff in connection with the litigation. An issue on prejudgment interest concerned an allegation that the plaintiff caused unnecessary delay.

The Nova Scotia Supreme Court held that a heightened lump sum award of $375,000 was just. The defendants could offset the interim costs of $175,000. The court saw no delay by the plaintiff as would move its discretion to limit prejudgment interest. It was payable from February 26, 2007 to the date of the order at 4% a year, calculated simply.

Company Law - Topic 9734

Actions against corporations and directors - Practice - Costs - General - [See Practice - Topic 7466.3 ].

Practice - Topic 7427.1

Costs - Solicitor and client costs - Measure of - Lump sum - [See Practice - Topic 7466.3 ].

Practice - Topic 7466.3

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Oppression actions - The plaintiff was successful in his primary claim, which was based on shareholder oppression - The plaintiff sought solicitor-and-client costs - The defendants sought costs, or reductions in a party and party award against them, because of various alleged "misconduct" of the plaintiff in connection with the litigation - The Nova Scotia Supreme Court held that an award in the range produced by the tariff failed to serve the principle of a substantial but partial indemnity - The court stated that if it was unhampered by other considerations (i.e., by the plaintiff's unnecessary inclusion of two parties, by the defendants' failures in their disclosure obligations, and by the findings of serious oppression), the court would set lump sum costs in the amount of $250,000 - The court stated that "the findings of oppression so serious as to constitute bad faith, and of dereliction in disclosure, incline one, if not to award solicitor-and-client costs, then to make an award at the high end of substantial contribution. That inclination meets with an opposite force, though not an equal one, because two parties, who bore two-fifths of the defendants' expense, were unnecessarily joined" - The court concluded that, all things taken into account, a heightened lump sum award of $375,000 was just - The defendants could offset the interim costs of $175,000.

Cases Noticed:

Minas Basin Holdings Ltd. v. Bryant (P.) Enterprises Ltd. et al. (2010), 289 N.S.R.(2d) 26; 916 A.P.R. 26; 2010 NSCA 17, refd to. [para. 4].

Gargarella v. Capobianco et al., [2009] O.T.C. Uned. I37 (Sup. Ct.), refd to. [para. 6].

MacIntyre v. Cape Breton District Health Authority (2011), 298 N.S.R.(2d) 223; 945 A.P.R. 223; 2011 NSCA 3, refd to. [para. 54].

Driscoll v. Crombie Developments Ltd. (2006), 247 N.S.R.(2d) 289; 785 A.P.R. 289; 2006 NSSC 262, refd to. [para. 54].

Sydney Cooperative Society Ltd. v. Coopers & Lybrand (2006), 248 N.S.R.(2d) 83; 789 A.P.R. 83; 2006 NSSC 276, refd to. [para. 54].

Morash v. Burke (2007), 252 N.S.R.(2d) 335; 804 A.P.R. 335; 2007 NSSC 68, refd to. [para. 54].

Knox v. Maple Leaf Homes et al. (2008), 264 N.S.R.(2d) 213; 847 A.P.R. 213; 2008 NSSC 114, refd to. [para. 54].

Willis v. Mailman (Bernard L.) Projects Ltd. et al. (2008), 264 N.S.R.(2d) 1; 847 A.P.R. 1; 2008 NSSC 94, refd to. [para. 54].

Burns v. Sobeys Group Inc. (2008), 263 N.S.R.(2d) 385; 843 A.P.R. 385; 2008 NSSC 102, refd to. [para. 54].

Boutcher et al. v. Clearwater Seafoods Limited Partnership (2010), 290 N.S.R.(2d) 293; 920 A.P.R. 293; 2010 NSSC 64, refd to. [para. 54].

Salman v. Al-Sheikh Ali (2011), 299 N.S.R.(2d) 308; 947 A.P.R. 308; 2011 NSSC 30, refd to. [para. 54].

Bent v. Atlantic Shopping Centres Ltd. (2011), 304 N.S.R.(2d) 206; 960 A.P.R. 206; 2011 NSSC 180, refd to. [para. 54].

Creighton v. Nova Scotia (Attorney General) et al. (2011), 309 N.S.R.(2d) 317; 979 A.P.R. 317; 2011 NSSC 437, refd to. [para. 54].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2011), 309 N.S.R.(2d) 236; 979 A.P.R. 236; 2011 NSSC 429, refd to. [para. 54].

Gammell v. Sobeys Group Inc. (2011), 306 N.S.R.(2d) 61; 968 A.P.R. 61; 2011 NSSC 190, refd to. [para. 54].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34; 2004 NSSC 209, refd to. [para. 55].

Authors and Works Noticed:

Koehnen, Markus, Oppression and Related Remedies (2004) pp. 393-394 [para. 4].

Counsel:

John A. Keith, for the plaintiff;

George W. MacDonald, Q.C., for the defendants.

This matter was heard on June 7, 2012, before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on costs and interest on October 12, 2012.