Poulain v. Iannetti, 2015 NSSC 303

• Jurisdiction: Nova Scotia
• Court: Supreme Court of Nova Scotia (Canada)
• Judge: Rosinski, J.
• Citation: 2015 NSSC 303,(2015), 366 N.S.R.(2d) 271 (SC)
• Date: 30 October 2015
• Subject Matter: PRACTICE

Poulain v. Iannetti (2015), 366 N.S.R.(2d) 271 (SC);

    1154 A.P.R. 271

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.003

George Poulain (plaintiff) v. David J. Iannetti (defendant)

(Hfx. No. 288814; 2015 NSSC 303)

Indexed As: Poulain v. Iannetti

Nova Scotia Supreme Court

Rosinski, J.

October 30, 2015.

Summary:

The plaintiff was injured in a 2001 motor vehicle accident for which liability was admitted. For the first two years, the plaintiff was entitled to Section B loss of income benefits of $140 per week because he was substantially unable to perform the duties of his "own occupation". After two years, the plaintiff would be entitled to indefinite loss of income benefits only if he were unable to perform the duties of "any occupation" for which he was reasonably suited by education, training or experience. The plaintiff retained the defendant lawyer to represent him on the motor vehicle claim. There was no written retainer, but the plaintiff argued that the lawyer was to handle all aspects of the claim. The lawyer argued that he was retained only for the Section A component. The insurer offered to settle the Section B claim for the full Section B benefits (including loss of income) over the two year "own occupation" period. After consulting with the lawyer, the plaintiff accepted the offer, thereby waiving any claim under the insurance policy to loss of income benefits for "any occupation" after the two years expired. The plaintiff, who remained unemployed, retained new counsel and sued the lawyer in contract and negligence for the loss of future Section B benefits. The plaintiff argued that he was given deficient legal advice before accepting the settlement offer, where the lawyer failed to advise him that he would be waiving any future claim to Section B benefits that he might be entitled to if he remained disabled from "any occupation" employment after the initial two year "own occupation" period expired.

The Nova Scotia Supreme Court, in a judgment reported (2015), 362 N.S.R.(2d) 225; 1142 A.P.R. 225, held that while the lawyer was not retained to deal with Section B benefits, he was negligent in the advice he gave when asked about the Section B settlement. The lawyer had a duty to either advise the plaintiff to obtain legal advice on the issue from someone else or, if he chose to advise the plaintiff, he had a duty to obtain the necessary information and advise the plaintiff of the potential negative effects of accepting the settlement and waiving any future claim to Section B benefits. The court assessed damages accordingly. The parties made submissions as to costs. At issue was whether two days from an earlier trial (this was a re-trial) should be added to the number of days for the re-trial and the plaintiff's entitlement to all of its claimed disbursements.

The Nova Scotia Supreme Court ruled that the number of days of the first trial was not to be added to the number of days for the re-trial for the purposes of assessing costs of the re-trial. The court determined which disbursements were recoverable by the plaintiff as necessary and reasonable.

Practice - Topic 6965

Costs - Definitions - Days of trial - The plaintiff successfully sued his lawyer for damages for professional negligence in representing him in a motor vehicle negligence claim - The Nova Scotia Supreme Court held that the successful plaintiff was entitled to costs under Scale 2 of Tariff A, which provided for costs of $2,000 per each trial day - Since this was a 2.5 day second trial ordered by the Court of Appeal following a two day first trial, the plaintiff claimed that he should receive $2,000 per day for both trials - The Nova Scotia Supreme Court rejected the submission as "no legal authority or jurisprudential guidance for awarding costs for that trial at this time was provided; moreover I find that there is an insufficient temporal and substantive nexus between the costs associated with that trial and this trial." - See paragraphs 21 to 27.

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies, scanning, printing or binding - The plaintiff successfully sued his lawyer for damages for professional negligence in representing him in a motor vehicle negligence claim - The plaintiff was awarded costs - The defendant disputed both the necessity and reliability of some of the claimed disbursements - The Nova Scotia Supreme Court determined which disbursements were allowable as both necessary and reasonable - All but $400 of the plaintiff's claimed $3,600 travel costs were disallowed - A claim of $2,071.44 for photocopying ($.25 per page) was reduced to a lump sum of $1,250 as the claim was not substantiated by evidence or further particulars which would allow the court to assess whether the full amount was reasonable - Only $200 of a $431.25 claim for fax costs was allowed, as the full amount was also not substantiated by evidence or further particulars - See paragraphs 28 to 38.

Practice - Topic 7136

Costs - Party and party costs - Disbursements - Travelling expenses - General - [See Practice - Topic 7134 ].

Practice - Topic 7150.3

Costs - Party and party costs - Disbursements - Faxes - [See Practice - Topic 7134 ].

Cases Noticed:

Cape Breton Development Corp. v. Roper (D.) Services Ltd. (2002), 203 N.S.R.(2d) 21; A.P.R. 21; 2002 NSSC 39, refd to. [para. 9].

Westmount Transfer Ltd. v. Mill-Joy Enterprises Ltd. (1975), 18 N.S.R.(2d) 94; 20 A.P.R. 94 (Co. Ct.), refd to. [para. 12].

Feener v. Wilson's Fuel Co. (1978), 28 N.S.R.(2d) 70; 43 A.P.R. 70 (Co. Ct.), refd to. [para. 12].

MacNeil Estate, Re (2002), 212 N.S.R.(2d) 133; 665 A.P.R. 133 (S.C.), refd to. [para. 12].

Haney et al. v. Wall (2007), 254 N.S.R.(2d) 278; 810 A.P.R. 278; 2007 NSSC 153, refd to. [para. 12].

Wadden v. BMO Nesbitt Burns (2014), 341 N.S.R.(2d) 94; 1081 A.P.R. 94; 2014 NSSC 11, affd. (2015), 360 N.S.R.(2d) 39; 1135 A.P.R. 39; 2015 NSCA 48, refd to. [para. 12].

Beadle et al. v. Pictou Landing Micmac (2013), 337 N.S.R.(2d) 246; 1067 A.P.R. 246; 2013 NSSC 327, refd to. [para. 12].

MacDonald v. McCormick (2008), 260 N.S.R.(2d) 380; 831 A.P.R. 380; 2008 NSSC 6, refd to. [para. 13].

Claussen Walters & Associates Ltd. v. Murphy (2002), 201 N.S.R.(2d) 58; 629 A.P.R. 58; 2002 NSCA 20, refd to. [para. 15].

MacNeil v. Borden, 1999 CanLII 1308 (S.C.), refd to. [para. 15].

Knox v. Interprovincial Engineering Ltd. et al. (1993), 120 N.S.R.(2d) 288; 332 A.P.R. 288 (S.C.), refd to. [para. 19].

Day v. Day (1994), 129 N.S.R.(2d) 186; 362 A.P.R. 186 (S.C.), refd to. [para. 20].

Johnston v. Clearwater Seafoods Ltd., [2008] N.S.R.(2d) Uned. 210; 2008 NSSC 403, refd to. [para. 20].

Xceed Mortgage Corp. et al. v. Jesty, [2014] N.S.R.(2d) Uned. 18; 2014 NSSC 51, refd to. [para. 20].

Burns v. Sobeys Group Inc. (2008), 263 N.S.R.(2d) 385; 843 A.P.R. 385; 2008 NSSC 102, refd to. [para. 20].

MacNeil v. Gillis (1995), 138 N.S.R.(2d) 1; 394 A.P.R. 1 (C.A.), refd to. [para. 21].

Frothingham v. Perez et al. (2011), 304 N.S.R.(2d) 329; 960 A.P.R. 329; 2011 NSCA 59, refd to. [para. 25].

Counsel:

Janus Siebrits, for the plaintiff;

Ralph W. Ripley, for the defendant.

This matter was heard by way of written submissions before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 30, 2015.