Lakeside Heavy Equipment Ltd. v. Emera Utility Services Inc., (2015) 444 N.B.R.(2d) 203 (TD)

• Judge: LaVigne, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 16, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 444 N.B.R.(2d) 203 (TD);2015 NBQB 185

Lakeside Heavy Equipment v. Emera Utility (2015), 444 N.B.R.(2d) 203 (TD);

    444 R.N.-B.(2e) 203; 1163 A.P.R. 203

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Temp. Cite: [2015] N.B.R.(2d) TBEd. OC.029

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.029

Lakeside Heavy Equipment Ltd. (plaintiff) v. Emera Utility Services Incorporated (defendant)

(B/C/115/11; 2015 NBQB 185; 2015 NBBR 185)

Indexed As: Lakeside Heavy Equipment Ltd. v. Emera Utility Services Inc.

Répertorié: Lakeside Heavy Equipment Ltd. v. Emera Utility Services Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

LaVigne, J.

September 24, 2015.

Summary:

Résumé:

Emera Utility Services Inc. ("EUS") hired Lakeside Heavy Equipment Ltd. ("LHE") under a subcontract to perform work at a wind farm project. LHE filed lien claims on April 26, 2011, and a Notice of Action with statement of claim attached on July 22, 2011. LHE alleged that the total amount payable to it pursuant to the subcontract was approximately $3,100,000. EUS had already paid $757,020.37. LHE claimed the difference plus contractual prejudgment interest.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at [2015] N.B.R.(2d) Uned. 53, held that LHE was entitled to $2,242,485.03 for the work performed under the subcontract. It had already received $757,020.37 and EUS was entitled to a further set-off of $80,695.40, leaving a balance of $1,404,769.26 payable to LHE by EUS. The subcontract contained special provisions for the calculation of the interest that was to be paid on outstanding amounts. Further submissions on interest and costs were to be heard.

The New Brunswick Court of Queen's Bench, Trial Division, awarded LHE interest of $513,744.80 and costs of $122,385.84. Accordingly, LHE would have judgment against EUS in the total amount of $2,040,899.90. LHE was also entitled to recover reasonable disbursements to be assessed as per Tariff "D" as well as all applicable HST on costs and disbursements. Until payment, costs would bear interest at the rate of seven per cent per year while the rest of the judgment would continue to bear interest as specified in article 5.3 of the subcontract.

Interest - Topic 2148

Agreement to pay interest - Bars to recovery - Delay - Emera Utility Services Inc. ("EUS") hired Lakeside Heavy Equipment Ltd. ("LHE") under a subcontract to perform work at a wind farm project - LHE filed lien claims on April 26, 2011, and a Notice of Action with statement of claim attached on July 22, 2011 - The court concluded that $1,404,769.26 was payable to LHE by EUS - The subcontract stipulated that interest on unpaid invoices was to be calculated as prescribed by article 5.3 - EUS argued that the amount of interest payable should be discounted for undue delay attributable to LHE - The New Brunswick Court of Queen's Bench, Trial Division, stated that while the broad authority provided by s. 45 of the Judicature Act gave the court discretion to disallow or limit interest even if that interest was provided for in a contract, this was not a case where that discretion should be used - The court was not satisfied that LHE caused undue delay in the litigation - There was no reason why the court should not uphold the obligations provided for under article 5.3 of the subcontract - LHE was entitled to be paid the interest expressly contracted for in the written agreement between the parties, which amounted to $513,744.80 - See paragraphs 12 to 38.

Interest - Topic 5103

Interest as damages (prejudgment interest) - Breach of contract - Contracts for work - [See Interest - Topic 2148 ].

Interest - Topic 5303

Interest as damages (prejudgment interest) - Interest on payment of money or debt withheld - Amount due under a contract - [See Interest - Topic 2148 ].

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - [See Interest - Topic 2148 ].

Mechanics' Liens - Topic 2303

Lienable claims - Claim for interest on lien claim - [See Interest - Topic 2148 ].

Mechanics' Liens - Topic 8800

Costs - General - [See Practice - Topic 7115 ].

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - [See Practice - Topic 7115 ].

Practice - Topic 7004

Costs - Party and party costs - General principles and definitions - Scale of costs - Fixing of - [See Practice - Topic 7115 ].

Practice - Topic 7115

Costs - Party and party costs - Special orders - Increase in scale of costs - Difficulty and complexity of proceedings - Emera Utility Services Inc. ("EUS") hired Lakeside Heavy Equipment Ltd. ("LHE") to perform work at a wind farm project - LHE filed lien claims on April 26, 2011, and a Notice of Action with statement of claim attached on July 22, 2011 - The court concluded that $1,404,769.26 was payable to LHE by EUS - LHE claimed costs as per Scale 4 of Tariff "A" of rule 59 and asked that the maximum 4% be applied to the excess amount - The New Brunswick Court of Queen's Bench, Trial Division, stated that the "amount involved" to be used in the tariffs was determined having regard to the amount allowed, the complexity of the proceeding, and the importance of the issues (rule 59.09(1)) - The court concluded that the pre-judgment interest to date was to be included in the "amount involved" - The complexity of this proceeding was also relevant in selecting the appropriate scale - EUS made the case unnecessarily complicated with its claims for set-off - Further, the court had completely rejected EUS' position concerning interest and awarded LHE the interest it claimed from the beginning - The court concluded that Scale 4 was the proper scale and it was reasonable to apply the maximum of 4% to the amount in excess of $100,000 - Pursuant to rule 59.08(1), the court fixed the costs payable to LHE at $81,590.56, using an amount involved of $1,918,514.06, calculated in accordance with Scale 4 of Tariff "A" and applying the maximum of 4% to the excess amount - See paragraphs 39 to 57.

Practice - Topic 7243

Costs - Party and party costs - Offers to settle - Effect of failure to accept - [See Practice - Topic 7244 ].

Practice - Topic 7244

Costs - Party and party costs - Offers to settle - Amount recovered - Calculation - Emera Utility Services Inc. ("EUS") hired Lakeside Heavy Equipment Ltd. ("LHE") to perform work at a wind farm project - LHE filed lien claims and a Notice of Action with statement of claim attached - The court concluded that $1,404,769.26 was payable to LHE by EUS - The court also determined that LHE was entitled to prejudgment interest of $513,744.80 and costs of $81,590.56 - LHE had served EUS with an Offer to Settle by accepting $1,800,000 in full settlement of the claim and costs - LHE, therefore sought to apply the multiplier of 1.5 provided for by rule 49.09(1) - EUS argued that the pre-judgment interest should not be included in the amount for the purpose of applying rule 49.09(1) - The New Brunswick Court of Queen's Bench, Trial Division, rejected EUS's argument - Rule 49.09(1) used the word "judgment" (not "amount involved") - The amount of the "judgment" included principal, interest and costs determined pursuant to rule 59.08(1) - The judgment was for the total amount of $2,000,104.62 including principal, interest and costs fixed pursuant to rule 59.08(1) - The cost consequence of rule 49.09(1) followed - LHE was entitled to costs of $122,385.84 ($81,590.56 x 1.5) - See paragraphs 58 to 64.

Cases Noticed:

Moncton (City) v. Aprile Contracting Ltd. et al. (1980), 29 N.B.R.(2d) 631; 66 A.P.R. 631 (C.A.), refd to. [para. 30].

Pugsley v. Albert (1995), 165 N.B.R.(2d) 267; 424 A.P.R. 267 (T.D.), varied. (1996), 179 N.B.R.(2d) 241; 455 A.P.R. 241 (C.A.), refd to. [para. 30].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 40].

Comeau v. Saint John Regional Hospital et al. (2003), 256 N.B.R.(2d) 356; 670 A.P.R. 356; 2003 NBCA 17, refd to. [para. 50].

Newcastle (Town) v. Mattatall, Porter and Harris et al. (1988), 87 N.B.R.(2d) 238; 221 A.P.R. 238 (C.A.), refd to. [para. 51].

Khoury v. Khoury (1994), 152 N.B.R.(2d) 290; 390 A.P.R. 290 (Fam Div.), refd to. [para. 61].

Statutes Noticed:

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 45(1) [para. 9]; sect. 46 [para. 70].

Rules of Court (N.B.), rule 49.09(1) [para. 59]; rule 59 [para. 39]; rule 60.08 [para. 71].

Counsel:

Avocats:

José Duguay and Sonier Duguay, for the plaintiff;

Cory Withrow, for the defendant.

This matter was heard on September 16, 2015, before LaVigne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following oral decision on September 24, 2015.