Ketler v. Nova Scotia (Attorney General), 2015 NSSC 242

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 20, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 242;(2015), 364 N.S.R.(2d) 225 (SC)

Ketler v. N.S. (A.G.) (2015), 364 N.S.R.(2d) 225 (SC);

    1146 A.P.R. 225

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AU.027

Mark Paul Ketler (plaintiff) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia (defendant)

(Tru. No. 340878; 2015 NSSC 242)

Indexed As: Ketler v. Nova Scotia (Attorney General)

Nova Scotia Supreme Court

Warner, J.

August 20, 2015.

Summary:

In October 2010, the plaintiff lost control of his vehicle while swerving to avoid striking a deer. He drove through the wooden guardrail on the side of a 10 metre long wooden bridge. The vehicle came to rest upside down in a creek. The plaintiff sued the Province for damages, alleging negligence in the inspection and maintenance of the guardrail, which had significantly deteriorated. A series of inspections dating from 2000 noted the need for repairs. The last inspection, 1.5 years before the accident, noted that the railing system was rotten and in urgent need of replacement. No repairs or replacement were undertaken notwithstanding the Province's knowledge of four fatalities between 2002 and 2007 on other short timber bridges. Repairs were scheduled, but ranked a low priority given the light traffic on this rural road.

The Nova Scotia Supreme Court, in a judgment reported (2015), 360 N.S.R.(2d) 361; 1135 A.P.R. 361, dismissed the action. The parties agreed on costs with the exception of the successful defendant's claim for the full invoiced cost ($34,635) of its expert engineering witness.

The Nova Scotia Supreme Court allowed as a disbursement $10,722.66 of the amount claimed for the expert witness. Although the expert evidence was necessary, of excellent quality, and central to the issues of liability, the hours charged to the defendant were unreasonable.

Practice - Topic 7131

Costs - Party and party costs - Disbursements - General - The Nova Scotia Supreme Court referred to a non-exhaustive list of factors to be considered in determining whether a claimed disbursement was reasonable.

Practice - Topic 7140

Costs - Disbursements - Costs of reports - In October 2010, the plaintiff lost control of his vehicle while swerving to avoid striking a deer - He drove through the wooden guardrail on the side of a 10 metre long wooden bridge - His vehicle came to rest upside down in a creek - The plaintiff sued the Province for damages, alleging negligence in the inspection and maintenance of the guardrail, which had significantly deteriorated - A series of inspections dating from 2000 noted the need for repairs - The last inspection, 1.5 years before the accident, noted that the railing system was rotten and in urgent need of replacement - No repairs or replacement were undertaken notwithstanding the Province's knowledge of four fatalities between 2002 and 2007 on other short timber bridges - Repairs were scheduled, but ranked a low priority given the light traffic on this rural road - The action was dismissed - The parties agreed on costs, with the exception of the Province's claim for the full invoiced cost ($34,635) of its expert engineering witness - The Nova Scotia Supreme Court allowed as a disbursement $10,722.66 of the amount claimed for the expert witness - Although the expert evidence was necessary, of excellent quality, central to the issues of liability and relied on by the court in its entirety, the hours charged to the Province were unreasonable - It would be unjust for the plaintiff to bear the entire billed cost of the expert.

Practice - Topic 7141

Costs - Disbursements - Costs of expert advice - [See Practice - Topic 7140 ].

Cases Noticed:

Claussen Walters & Associates Ltd. v. Murphy (2002), 201 N.S.R.(2d) 58; 629 A.P.R. 58; 2002 NSCA 20, refd to. [para. 3].

Cashen v. Donovan (1999), 174 N.S.R.(2d) 320; 532 A.P.R. 320 (S.C.), refd to. [para. 4].

Rhyno Demolition Inc. v. Nova Scotia (Attorney General) et al. (2005), 233 N.S.R.(2d) 311; 739 A.P.R. 311; 2005 NSSC 147, refd to. [para. 5].

Andrews et al. v. Keybase Financial Group Inc. et al. (2014), 349 N.S.R.(2d) 1; 1101 A.P.R. 1; 2014 NSSC 287, refd to. [para. 5].

Counsel:

Nicolle A. Snow, for the plaintiff;

Duane Eddy, for the defendant.

This matter was heard before Warner, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 20, 2015.