Harriss et al. v. Keating Construction Co. et al., (2014) 343 N.S.R.(2d) 362 (SC)

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 10, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 343 N.S.R.(2d) 362 (SC);2014 NSSC 135

Harriss v. Keating Constr. Co. (2014), 343 N.S.R.(2d) 362 (SC);

    1084 A.P.R. 362

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AP.032

Patricia Harriss and Kevin Sutherland (plaintiffs) v. Keating Construction Company Limited and Allan R. Keating (defendants)

(Syd. No. 337036; 2014 NSSC 135)

Indexed As: Harriss et al. v. Keating Construction Co. et al.

Nova Scotia Supreme Court

Edwards, J.

April 10, 2014.

Summary:

The plaintiffs contracted with the corporate defendant (Keating Construction Co.) to renovate their 100 year old residence. Keating Construction stopped working on the project before it was completed because the plaintiffs refused to pay more than the agreed upon price. In June 2010, Mr. Keating prepared an invoice showing that the plaintiffs owed him $71,848.97 and placed it with a collection agency. The plaintiffs sued Keating Construction for the cost of repairing various deficiencies and the cost of temporary accommodation. Respecting the collection agency issue, the plaintiffs sued Mr. Keating personally for the torts of intimidation and interference, and claimed punitive damages. Alternatively, they claimed that Keating Construction was vicariously liable for Mr. Keating's conduct.

The Nova Scotia Supreme Court, in a decision reported at (2014), 342 N.S.R.(2d) 68; 1083 A.P.R. 68, ordered Keating Construction to pay the plaintiffs $14,069.53 for deficiencies and $1,500 to cover temporary accommodation while the deficiencies were being repaired. The court dismissed the intimidation and interference action against Mr. Keating because he was acting within the scope of his authority as an officer of Keating Construction, and against Keating Construction because the plaintiffs had not made out negligence or breach of contract on this aspect of their claim. Punitive damages were not warranted. Keating Construction was ordered to immediately do whatever it could to have the matter removed from the collection agency. Both parties requested supplementary reasons for items that the court might not have addressed, including whether the plaintiffs were entitled to general damages, and whether Mr. Keating made a fraudulent claim against the plaintiffs.

The Nova Scotia Supreme Court, in a decision reported at (2014), 342 N.S.R.(2d) 91; 1083 A.P.R. 91, declined to award general damages. The court was also not convinced that Mr. Keating's conduct was fraudulent. The plaintiffs sought costs.

The Nova Scotia Supreme Court awarded the plaintiffs costs of $47,710.46. This included increased and lump sum costs as a result of Mr. Keating's deplorable conduct.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - The plaintiffs contracted with Keating to renovate their home - Keating stopped working on the project before it was completed because the plaintiffs refused to pay more than the agreed upon price - Keating prepared an invoice for over $70,000 and placed it with a collection agency before sending the invoice to the plaintiffs - The plaintiffs sued Keating for almost $120,000 (the cost of repairing various deficiencies and temporary accommodation) - Respecting the collection agency issue, the plaintiffs also sued for the torts of intimidation and interference and claimed punitive damages - Keating counterclaimed for the $70,000 - A major issue at trial was whether there was a fixed price contract - The trial judge found in favour of the plaintiffs on this issue and held that they were entitled to a gross award of $37,319 - The trial judge dismissed the collection agency claim but ordered Keating to immediately take action to remove the matter from the collection agency - The counterclaim was dismissed - The Nova Scotia Supreme Court found that Keating's decision to contest the lawsuit by denying the existence of a fixed price contract was almost beyond belief - The counterclaim, which was totally unjustified and all but eliminated by Keating's own expert, left the plaintiffs with no choice but to go to court - Although the collection agency claim was dismissed, the plaintiffs could not be faulted for making it - Keating's actions were deplorable, high-handed and arbitrary - He bid lower than his own estimate in order to get the job, but fully anticipated that, when the agreed contract funds inevitably ran out, he would be in a strong position to pressure the plaintiffs to come up with more money - For the main action, the plaintiffs were entitled to costs of $8,000 (amount involved of $37,319, Scale 3 and rounded up) - For the counterclaim, the plaintiffs were entitled to lump sum costs of $20,000, which represented a "substantial contribution" toward their legal expenses of $65,000 - In addition, they were awarded $9,000 for the 4.5 days of trial plus disbursements of $10,710.

Practice - Topic 7110.5

Costs - Party and party costs - Special orders - Increased scale or additional costs - Dismissal of counterclaim - [See Practice - Topic 7110.1 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7110.1 ].

Cases Noticed:

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (S.C.), refd to. [para. 3].

Cuvelier et al. v. Bank of Montreal (2002), 212 N.S.R.(2d) 17; 665 A.P.R. 17; 2002 NSSC 284, refd to. [para. 21].

Founders Square Ltd. v. Nova Scotia (Attorney General) (2000), 186 N.S.R.(2d) 189; 581 A.P.R. 189 (S.C.), refd to. [para. 22].

Burns v. Sobeys Group Inc. (2008), 263 N.S.R.(2d) 385; 843 A.P.R. 385; 2008 NSSC 102, refd to. [para. 23].

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. 24].

Bain et al. v. Nova Scotia (Attorney General) et al. (2013), 327 N.S.R.(2d) 335; 1036 A.P.R. 335; 2013 NSSC 82, refd to. [para. 42].

Counsel:

Robert Pineo, Jeremy P. Smith and Alison Morgan, for the plaintiffs;

Hugh R. McLeod, for the defendants.

This matter was heard at Sydney, N.S., on February 17-21, 2014, before Edwards, J., of the Nova Scotia Supreme Court, who delivered the following decision on costs on April 10, 2014.