Killorn v. Healthvision Corp., (1997) 158 N.S.R.(2d) 357 (CA)

• Judge: Hallett, Freeman and Roscoe, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 05, 1997
• Jurisdiction: Nova Scotia
• Citations: (1997), 158 N.S.R.(2d) 357 (CA)

Killorn v. Healthvision Corp. (1997), 158 N.S.R.(2d) 357 (CA);

    466 A.P.R. 357

MLB headnote and full text

Healthvision Corporation, a body corporate formerly known as HCS Healthcare Systems Inc., a body corporate (appellant) v. J. Colleen Killorn (respondent)

(C.A. No. 125259)

Indexed As: Killorn v. Healthvision Corp.

Nova Scotia Court of Appeal

Hallett, Freeman and Roscoe, JJ.A.

February 5, 1997.

Summary:

The plaintiff was employed by the defend­ant as an account manager from November 9, 1989, until July 12, 1993, when she was dismissed without cause and offered four months' pay as severance. The plaintiff rejected the offer and sued for damages for wrongful dismissal. The plaintiff claimed damages equal to a reasonable notice period of 24 months, general damages for mental distress and punitive damages for the manner in which she was terminated. It was a jury trial.

The Nova Scotia Supreme Court allowed the action in part. The jury fixed the period of reasonable notice at six months, rejected the punitive damages claim, and awarded $60,000 general damages for mental distress. The defendant appealed the mental distress damage award, claiming that the trial judge erred in leaving the issue with the jury. Alternatively, the trial judge misdirected the jury by having them focus on foreseeability and, in any event, the $60,000 award was inordinately high.

The Nova Scotia Court of Appeal, Free­man, J.A., dissenting, in a judgment reported 156 N.S.R.(2d) 1; 461 A.P.R. 1, allowed the appeal and set aside the dam­age award for mental dis­tress. Absent facts disclosing a separate actionable wrong (e.g., deceit or defama­tion), damages were not available for mental distress. The trial judge erred in leaving the issue with the jury. Alternatively, the trial judge failed to instruct the jury in accord with the decision of the Supreme Court of Canada in Vorvis v. Insurance Corp. of British Columbia. Fur­ther, the damage award was inordinately high. Dam­ages should not have exceeded $15,000. The issue of costs was reserved.

The Nova Scotia Court of Appeal subsequently determined the costs issue.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - A defendant in a wrongful dismissal action made a pretrial offer to settle for $40,000 - The offer was substantially less than what the jury awarded in damages, but substantially more than what the Court of Appeal reduced the damage award to on appeal - The Nova Scotia Court of Appeal awarded the plaintiff party and party costs plus disbursements up until the time of the offer - The court awarded the defendant its party and party costs plus disburse­ments thereafter (rule 41A.09(2)) - Apart from taxed disburse­ments, the costs awards were equal and set off against each other - See paragraphs 1 to 7.

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 41A.09(2) [para. 3].

Counsel:

William L. Ryan, Q.C., and Nancy Rubin, for the appellant;

Raymond S. Riddell, for the respondent.

This appeal was heard on September 10, 1996, before Hallett, Freeman and Roscoe, JJ.A., of the Nova Scotia Court of Appeal.

On February 5, 1997, Hallett, J.A., delivered the following supplementary judg­ment on costs for the Court of Appeal.