MacLellan v. Canada (Attorney General) et al., (2015) 358 N.S.R.(2d) 245 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 18, 2014
• Jurisdiction: Nova Scotia
• Citations: (2015), 358 N.S.R.(2d) 245 (SC);2015 NSSC 125

MacLellan v. Can. (A.G.) (2015), 358 N.S.R.(2d) 245 (SC);

    1131 A.P.R. 245

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.044

John Cyril MacLellan (plaintiff/respondent) v. Attorney General of Canada representing the Department of National Defence and Lieutenant Colonel David T. Lewis (defendants/moving parties)

John Cyril MacLellan (plaintiff/respondent) v. Her Majesty, Queen Elizabeth II, in the Right of the Dominion of Canada, Captain (N) Darren Garnier, Commander Garrett Reddy, Major Patrick Kavanagh and Major Prem Rawal (defendants/moving parties)

(Hfx. No. 355119; 2015 NSSC 125)

Indexed As: MacLellan v. Canada (Attorney General) et al.

Nova Scotia Supreme Court

LeBlanc, J.

April 21, 2015.

Summary:

The plaintiff ultimately took a release from the Armed Forces. He commenced two actions in tort, as well as advancing various Charter and statutory claims. The defendants moved to strike the claims on various grounds.

The Nova Scotia Supreme Court, in a decision reported at (2014), 349 N.S.R.(2d) 52; 1101 A.P.R. 52, dismissed the two actions. The Court found that some of the claims were properly subject to the National Defence Act grievance process, while others were struck as unsustainable.The defendants sought party and party costs in the amount of $24,000. The total disbursements claimed amounted to $4,251.73.

The Nova Scotia Supreme Court awarded costs of $18,000 and disbursements of $4,251.73, for a total of $22,251.73.

Practice - Topic 5725

Judgments and orders - Summary judgments - Costs - The defendants sought costs in the amount of $24,000, following the pre-trial dismissal of the plaintiff's claims - The plaintiff had commenced two actions in tort, as well as advancing various Charter and statutory claims - Some of the claims were properly subject to the National Defence Act grievance process, while others were struck as unsustainable - The defendants submitted that their motion brought an end to the proceedings, and that they were therefore entitled to costs on the basis of the 2.5 days of court time and the multiplier of four to the $5,000 base amount under Tariff C - The Nova Scotia Supreme Court awarded costs of $18,000 - The plaintiff's financial situation was not a reason to relieve him entirely of liability for costs - The general rule remained that costs followed the event - The Court declined to make any order in respect of expenses incurred by the plaintiff in defending a court-martial, nor was it satisfied that it could properly consider those alleged expenses in determining costs in this proceeding.

Practice - Topic 7118.1

Costs - Party and party costs - Special orders - Multiplier - [See Practice - Topic 5725 ].

Cases Noticed:

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2008), 271 N.S.R.(2d) 83; 867 A.P.R. 83; 2008 NSSC 322, consd. [para. 5].

National Bank Financial Ltd. v. Potter et al. (2010), 294 N.S.R.(2d) 1; 933 A.P.R. 1; 2010 NSSC 220, consd. [para. 6].

Barthe v. National Bank Financial Ltd. - see National Bank Financial Ltd. v. Potter et al.

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, refd to. [para. 6].

Robertson v. McCormick (2012), 315 N.S.R.(2d) 377; 998 A.P.R. 377; 2012 NSSC 156, consd. [para. 7].

Bridges v. Dominion of Canada General Insurance Co. et al. (2012), 319 N.S.R.(2d) 57; 1010 A.P.R. 57; 2012 NSSC 249, consd. [para. 9].

Bent v. Farm Loan Board (N.S.), Horsnell and Horsnell (1978), 30 N.S.R.(2d) 552; 49 A.P.R. 552 (T.D.), refd to. [para. 17].

Body Shop Canada Ltd. v. Carson (Dawn) Enterprises Ltd. et al., [2015] N.S.R.(2d) Uned. 16; 2015 NSSC 39, refd to. [para. 18].

Mercier v. Nova Scotia (Attorney General) (2014), 349 N.S.R.(2d) 320; 1101 A.P.R. 320; 2014 NSSC 309, refd to. [para. 18].

Windsor v. Poku (2003), 214 N.S.R.(2d) 88; 671 A.P.R. 88; 2003 NSSC 95, refd to. [para. 18].

Hill v. Cobequid Housing Authority et al. (2011), 303 N.S.R.(2d) 312; 957 A.P.R. 312; 2011 NSSC 219, refd to. [para. 18].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 77 [para. 2]; Tariff C [para. 3].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

M. Kathleen McManus and Susan R. Taylor, for the defendants/moving parties;

Kevin A. MacDonald, for the plaintiff/respondent.

This costs matter was heard on December 18, 2014, in Halifax, Nova Scotia, before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment, dated April 21, 2015.