IForm Inc. v. Rossignol et al., 2011 NSSC 273

JudgeHood, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateJuly 19, 2011
JurisdictionNova Scotia
Citations2011 NSSC 273;(2011), 308 N.S.R.(2d) 101 (SC)

IForm Inc. v. Rossignol (2011), 308 N.S.R.(2d) 101 (SC);

    976 A.P.R. 101

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. NO.022

IForm Inc., a body corporate (plaintiff) v. Real Rossignol, Principal Developments Limited, a body corporate, Pacific Formwork Limited, Sarkas Metlej and Peter Metlej (defendants)

(Hfx. No. 333223; 2011 NSSC 273)

Indexed As: IForm Inc. v. Rossignol et al.

Nova Scotia Supreme Court

Hood, J.

July 19, 2011.

Summary:

The plaintiff sued the five defendants and obtained a certificate of lis pendens against the lands of one of the defendants (Principal). The certificate of lis pendens was filed pursuant to s. 58 of the Land Registration Act. Principal moved to have the certificate of lis pendens vacated.

The Nova Scotia Supreme Court, in a decision reported 299 N.S.R.(2d) 73; 947 A.P.R. 73, held that the lis pendens was a nullity because of lack of notice to the landowner. Alternatively, if the lis pendens was not a nullity, it should be discharged because the plaintiff's claim did not create an interest in land for which a certificate of lis pendens should issue. Costs of the motion became an issue.

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

Barristers and Solicitors - Topic 848.1

Duty to court - Liability for costs - For improper motions or applications - [See Practice - Topic 7404 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - The plaintiff sued the five defendants and obtained a certificate of lis pendens against the lands of one of the defendants (Principal) - On a motion by Principal, the lis pendens was discharged - One of the defendants, Rossignol, sought $2,000 in costs against the plaintiff respecting the motion - The Nova Scotia Supreme Court noted that while Rossignol was not a party to the motion, the plaintiff had requested him to testify and file an affidavit and his counsel appeared with him when he was questioned on the affidavit - The court concluded that since Rossignol was a party to the proceedings, he would be entitled to costs of the motion ($750), but only if successful at trial - The fact that he was not a party and took no position on the lis pendens motion were considerations reflected in the quantum of the award - See paragraphs 21 to 23.

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 7404 ].

Practice - Topic 7404

Costs - Solicitor and client costs - General principles - Solicitor ordered to pay client's or other party's costs - The plaintiff sued the five defendants (constructive trust claim) and obtained a certificate of lis pendens against the lands of one of the defendants (Principal) - On a motion by Principal, the lis pendens was declared invalid, or alternatively ordered discharged because the constructive trust claim lacked merit - Four of the defendants sought solicitor/client costs against the plaintiff and costs personally against the plaintiff's counsel - The Nova Scotia Supreme Court held that this was not one of those rare cases where it was appropriate to award costs as requested by the plaintiff - This was an interlocutory motion and no fact findings were made - A claim found to have no merit was different from a frivolous or vexatious claim - There was no improper or negligent conduct - Thus the four defendants were awarded costs of the motion of two days pursuant to Tariff C ($4,000 payable forthwith) - See paragraphs 1 to 20.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7404 ].

Cases Noticed:

Dempsey et al. v. Dempsey (2008), 266 N.S.R.(2d) 196; 851 A.P.R. 196, refd to. [para. 11].

Counsel:

Blair Mitchell, for the plaintiff;

James D. MacNeil, for the defendant, Real Rossignol;

Gavin Giles, Q.C., John Kulik, Q.C., and John DiCostanzo, for the defendants, Principal Developments Limited, Pacific Formwork Limited, Sarkas Metlej and Peter Metlej.

This costs matter was dealt with by way of written submissions by Hood, J., of the Nova Scotia Supreme Court, who delivered the following decision on July 19, 2011.

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