King v. RBC Dominion Securities Inc. et al., 2012 NSSC 259

• Judge: Bourgeois, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 06, 2012
• Jurisdiction: Nova Scotia
• Citations: 2012 NSSC 259;(2012), 319 N.S.R.(2d) 13 (SC)

King v. RBC Dominion Securities (2012), 319 N.S.R.(2d) 13 (SC);

    1010 A.P.R. 13

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. JL.037

Henry David King and Joyce Carmel King (applicants) v. RBC Dominion Securities Inc./RBC Dominion Valeurs Mobiliers Inc., a body corporate, and Frank Youden (respondents)

(Syd. No. 246513; 2012 NSSC 259)

Indexed As: King v. RBC Dominion Securities Inc. et al.

Nova Scotia Supreme Court

Bourgeois, J.

July 6, 2012.

Summary:

The plaintiffs sued the defendants respecting the negligent management and supervision of their investment account. Three similar actions were commenced against the same defendants, involving the same allegation by other plaintiffs respecting their accounts. The plaintiffs brought a motion under rule 37.02 to consolidate the four actions or, alternatively, for them to be heard together.

The Nova Scotia Supreme Court, in a judgment reported 318 N.S.R.(2d) 105; 1005 A.P.R. 105, dismissed the motion. At issue was costs.

The Nova Scotia Supreme Court ordered that the plaintiffs pay the defendants $800 costs on the motion. Costs were payable in any event of the cause, but only at the end of the proceedings.

Practice - Topic 6967

Costs - Definitions - Costs payable in any event of the cause - The plaintiffs sued the defendants respecting the negligent management and supervision of their investment account - Three similar actions were commenced against the same defendants, involving the same allegations by other plaintiffs respecting their accounts - All plaintiffs were represented by the same counsel and wished a civil jury trial - The plaintiffs moved under rule 37.02 to consolidate the four actions or, alternatively, for them to be heard together - The motion was dismissed because the plaintiffs failed to establish the degree of overlap of evidence (including expert evidence) proposed to be called respecting each plaintiff - Although there would be commonality of evidence and law, the evidence would likely be individualized respecting each plaintiff - Although the claims involved "similar" transactions by the same investment advisor, the four individual actions did not involve the "same" transaction as required under rule 37.02 - Consolidation was not established to be in the best interests of all of the parties - There was also a concern respecting the impact on a single jury of hearing multiple allegations of negligence respecting four sets of plaintiffs - It was not established that the four actions were "inextricably intertwined" or that the outcome of one action would be conclusive of the others - The defendants sought $2,000 in costs, payable forthwith by all four sets of plaintiffs - The Nova Scotia Supreme Court held that an appropriate award under Tariff C for a hearing more than one hour but less than a half day, was $800 - The court ordered that costs were payable in any event of the cause (rather than the traditional costs in the cause as argued for by the plaintiffs) - It was appropriate that the plaintiffs bear the cost of the failed motion regardless of the outcome of the litigation - However, costs were payable only by the plaintiffs who unsuccessfully brought the motion and were to be paid at the end of the proceedings, not forthwith.

Practice - Topic 7168.1

Costs - Party and party costs - Liability for party and party costs - Between plaintiffs - [See Practice - Topic 6967 ].

Practice - Topic 7364

Costs - Costs of interlocutory proceedings - Costs of motions or applications - [See Practice - Topic 6967 ].

Practice - Topic 7372

Costs - Costs of interlocutory proceedings - Payable forthwith - [See Practice - Topic 6967 ].

Cases Noticed:

North American Trust Co. et al. v. Salvage Association (1998), 173 N.S.R.(2d) 249; 527 A.P.R. 249; 1998 NSCA 210, refd to. [para. 12].

Merks Poultry Farms Ltd. et al. v. Wittenberg et al. (2010), 296 N.S.R.(2d) 36; 940 A.P.R. 36; 2010 NSSC 395, refd to. [para. 13].

National Bank Financial Ltd. v. Potter et al. (2008), 267 N.S.R.(2d) 339; 853 A.P.R. 339; 2008 NSSC 213, refd to. [para. 13].

Amaratunga v. Northwest Atlantic Fisheries Organization (2011), 297 N.S.R.(2d) 385; 943 A.P.R. 385; 2011 NSSC 3, refd to. [para. 14].

Counsel:

Robert Risk and Jennifer Anderson, for the applicants;

Roderick Rogers, Q.C., on behalf of Nigel Campbell, for the respondents.

This matter was heard by way of written submissions dated July 5 and 6, 2012, at Sydney, N.S., before Bourgeois, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 6, 2012.