Ketler v. Nova Scotia (Attorney General), 2016 NSCA 15

• Judge: Bryson, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 25, 2016
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 15;(2016), 370 N.S.R.(2d) 196 (CA)

Ketler v. N.S. (A.G.) (2016), 370 N.S.R.(2d) 196 (CA);

    1165 A.P.R. 196

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.001

Mark Paul Ketler (appellant) v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia (respondent)

(CA 444047; 2016 NSCA 15)

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

Nova Scotia Court of Appeal

Bryson, J.A.

February 29, 2016.

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, in a judgment reported (2015), 364 N.S.R.(2d) 225; 1146 A.P.R. 225, 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. The plaintiff appealed. The defendant applied for security for costs in the amount of 40% of the costs awarded at trial.

The Nova Scotia Court of Appeal, per Bryson, J.A., ordered that the plaintiff post security for costs in the modest amount of $2,500, which was about 25% of the amount sought by the defendant.

Practice - Topic 8207.2

Costs - Security for costs - Security for costs of an appeal - Indigent appellant - [See Practice - Topic 8209 ].

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances or other good reasons - 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 plaintiff sued the Province for damages, alleging negligence in the inspection, maintenance and failure to replace the guardrail, which had significantly deteriorated - A series of inspections dating from 2000 noted the need for repairs - In 2007, the Province had in place a program for inspecting, maintaining, repairing and replacing all wooden guard rails to a higher standard - Since all could not be replaced immediately, that work was based on the bridge's location on a priority list - Some bridges were upgraded - The bridge in question was number 28 of the list of 51 bridges left to be upgraded to the new standards - The trial judge dismissed the action - The Province conceded that it owed a prima facie duty of care respecting the maintenance of bridges and that the risk was reasonably foreseeable - The policy in place to upgrade all wooden guardrails on a priority basis was a policy decision, negating any duty to immediately upgrade all wooden guardrails to the new higher standards - That policy was both reasonable and reasonably carried out - The court opined that the state of the wooden guardrails at the time of the accident probably did not meet that pre-2007 standard - However, the plaintiff failed to prove causation - The "but for" test was not met where the plaintiff did not establish that, if the wooden guardrail had been maintained to the pre-2007 standards, his vehicle would not have gone off the bridge - Absent accident reconstruction evidence or any other evidence that the pre-2007 standard would have prevented the vehicle from going off the bridge, causation was speculative - The plaintiff appealed - The defendant sought costs equal to 40% of trial costs (which had not been paid and which the defendant agreed not to enforce pending the appeal) - The Nova Scotia Court of Appeal ordered that the plaintiff post security for costs in the modest amount of $2,500, which was about 25% of the amount sought by the defendant - "Special circumstances" existed because the plaintiff had neither the income nor the assets to pay either costs awarded at trial or costs of a future unsuccessful appeal - However, the plaintiff provided no evidence that he could not raise security to pay something - The modest amount awarded would not deny the plaintiff access to an appeal.

Practice - Topic 8214

Costs - Security for costs - Security for costs of an appeal - Determination of amount of - [See Practice - Topic 8209 ].

Cases Noticed:

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2011), 304 N.S.R.(2d) 178; 960 A.P.R. 178; 2011 NSCA 40, refd to. [para. 8].

Williams Lake Conservation Co. v. Chebucto Community Council of Halifax (Regional Municipality) et al. (2005), 231 N.S.R.(2d) 320; 733 A.P.R. 320; 2005 NSCA 44, refd to. [para. 9].

Stewart et al. v. Bardsley et al. (2014), 343 N.S.R.(2d) 133; 1084 A.P.R. 133; 2014 NSCA 32, refd to. [para. 10].

Frost v. Herman (1976), 18 N.S.R.(2d) 167; 20 A.P.R. 167 (C.A.), refd to. [para. 11].

J. and P. Reid Developments Ltd. v. Branch Tree Nursery and Landscaping Ltd. (2006), 250 N.S.R.(2d) 35; 796 A.P.R. 35; 2006 NSCA 131, refd to. [para. 11].

Rogers v. Nova Scotia Power Inc. (2006), 242 N.S.R.(2d) 182; 770 A.P.R. 182; 2006 NSCA 33, refd to. [para. 11].

Leigh et al. v. Belfast Mini-Mills Ltd. et al. (2013), 332 N.S.R.(2d) 179; 1052 A.P.R. 179; 2013 NSCA 86, refd to. [para. 11].

Hall-Chem Inc. v. Vulcan Packaging Inc. et al. (1994), 72 O.A.C. 303 (C.A.), refd to. [para. 11].

Wall v. 679927 Ontario Ltd. et al. (1999), 176 N.S.R.(2d) 96; 538 A.P.R. 96 (C.A.), refd to. [para. 13].

Munroe v. Morgan Industrial Contracting et al. (2004), 222 N.S.R.(2d) 274; 701 A.P.R. 274; 2004 NSCA 49, refd to. [para. 15].

Campbell v. Lienaux (2001), 196 N.S.R.(2d) 364; 613 A.P.R. 364; 2001 NSCA 122, refd to. [para. 17].

Counsel:

Nicolle Snow, for the appellant;

Duane Eddy, for the respondent.

This motion was heard on February 25, 2016, at Halifax, N.S., in Chambers before Bryson, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on February 29, 2016.