Reid v. Kraus et al., 2001 SKCA 6

• Judge: Bayda, C.J.S., Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 08, 2000
• Jurisdiction: Saskatchewan
• Citations: 2001 SKCA 6;(2000), 203 Sask.R. 98 (CA)

Reid v. Kraus (2000), 203 Sask.R. 98 (CA);

    240 W.A.C. 98

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. FE.058

John Reid (appellant/plaintiff) v. Gerald M. Kraus, Ian D. Mckay, James G. Garden and Michael S. Scott (respondents/defendants)

(No. 3196; 2001 SKCA 6)

Indexed As: Reid v. Kraus et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Lane and Jackson, JJ.A.

November 8, 2000.

Summary:

The plaintiff sued the defendants for negli­gence. A jury trial ensued. The defendants applied for a nonsuit at the close of the plaintiff's case.

The Saskatchewan Court of Queen's Bench, in a decision reported at [1999] Sask.R. Uned. 11, allowed the motion. The plaintiff appealed.

The Saskatchewan Court of Appeal, in a decision reported at 189 Sask.R. 122; 216 W.A.C. 122, allowed the appeal and ordered a new trial. Issues arose pertaining to costs.

The Saskatchewan Court of Appeal ordered the defendant to pay the plaintiff's costs of the appeal and costs thrown away by reason of the abortive trial, in any event. However, the costs were not payable until after the results of the second trial were known so that, if the defendant was success­ful, a set-off could take place.

Practice - Topic 7470.3

Costs - Solicitor and client costs - Enti­tlement to solicitor and client costs - Thrown-away costs - A trial judge granted a defendant's motion for a non-suit - The plaintiff appealed and a new trial was ordered - The Saskatchewan Court of Appeal ordered the defendant to pay the plaintiff's costs of the appeal and costs thrown away by reason of the abort­ive trial, in any event - However, the costs were not payable until after the results of the second trial were known so that, if the defendant was successful, a set-off could take place.

Cases Noticed:

Rose v. Sargent, [1949] 2 W.W.R. 66 (Alta. C.A.), dist. [para. 4].

Fox v. White and Canada Dry Ltd. (1990), 106 A.R. 22; 39 C.P.C.(2d) 218 (C.A.), dist. [para. 4].

Bell v. Krohn, [1931] 2 W.W.R. 701 (Sask. C.A.), dist. [para. 4].

Errico v. B.C. Electric Railway Co., [1917] 2 W.W.R. 238 (B.C.C.A.), dist. [para. 4].

Robinson v. Point Grey, [1927] 2 D.L.R. 471 (B.C.C.A.), not folld. [para. 4].

Counsel:

R. Gates and S. Stener, for the appellant;

M. Laprairie, Q.C., for the respondents.

This matter was heard on November 8, 2000, by Bayda, C.J.S., Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. Bayda, C.J.S., delivered the following deci­sion for the Court of Appeal on January 18, 2001.