Smith v. Saskatoon (City) et al., (2010) 349 Sask.R. 265 (QB)

• Judge: Mills, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 28, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 349 Sask.R. 265 (QB);2010 SKQB 31

Smith v. Saskatoon (2010), 349 Sask.R. 265 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. FE.030

Richard James Smith (plaintiff) v. The City of Saskatoon (defendant)

(2003 Q.B.G. No. 975)

Tracey Paulow and Leonard Paulow (plaintiffs) v. City of Saskatoon and Richard James Smith (defendants)

(2003 Q.B.G. No. 1030)

Lorena Rey (plaintiff) v. City of Saskatoon and Richard James Smith (defendants)

(2003 Q.B.G. No. 1031; 2010 SKQB 31)

Indexed As: Smith v. Saskatoon (City) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Mills, J.

January 28, 2010.

Summary:

Smith owned a duplex in Saskatoon. The Paulows and Rey were tenants. As a result of a fire which destroyed much of the duplex and most of the tenants' contents, Smith, the Paulows, and Rey sued the City of Saskatoon. They alleged the fire was the result of the City's faulty electrical connectors on the overhead power line where the connection was made to the service mast on the outside of the duplex. The tenants also sued Smith for their losses. All three actions were heard together.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2007), 295 Sask.R. 138, allowed the actions against the City. The actions against Smith were dismissed. The court awarded damages to Rey of $29,000, to the Paulows of $38,000 and to Smith of $120,000 (subject to his insurer's subrogated claim). The City appealed.

The Saskatchewan Court of Appeal, in a decision reported at (2008), 314 Sask.R. 251; 435 W.A.C. 251, allowed the appeal and dismissed the actions. Costs of the appeal were taxed before the local registrar as the assessment officer. The City applied under rule 567 for a review of the assessment of costs.

The Saskatchewan Court of Queen's Bench dismissed the application.

Practice - Topic 7168.1

Costs - Party and party costs - Liability for party and party costs - Between plaintiffs - [See Practice - Topic 7170 ].

Practice - Topic 7170

Costs - Party and party costs - Liability for party and party costs - Joint and several liability - A fire destroyed a duplex owned by Smith - Smith and two sets of tenants, the Paulows and Rey, each sued the city, alleging negligence in the supply of electricity to the duplex - The actions were not consolidated, but they were heard together - The trial court's finding of negligence was overturned on appeal and the actions were dismissed - The assessment officer who taxed the costs treated each of the actions as independent and assessed costs on a party and party basis against each plaintiff under the column that corresponded with the amount of the claim advanced by that plaintiff - As each file was taxed separately, each plaintiff's liability was individual and not joint and several - The city applied under rule 567 for a review of the assessment of costs - The Saskatchewan Court of Queen's Bench dismissed the application - Under rule 567, as under its predecessor, rule 560, because the issue here was whether the appropriate principles were applied on the assessment, no deference to the discretion of the taxing officer was needed - The court rejected the city's assertion that the officer had no discretion to depart from the normal rule that liability of unsuccessful plaintiffs for costs was joint and several - That rule referred to joint plaintiffs in a single action - These were three independent actions that were tried together for convenience - It was appropriate that each plaintiff was to be responsible for the costs associated with his or her action - Nor was there any error in failing to apportion costs based on the amount of damages assessed by the trial judge for each plaintiff - The trial judge's decision became irrelevant for the assessment of costs when it was reversed - There was no rational basis on which to assess damages based on the amounts found by the trial judge - Those amounts were zero - The assessment officer had not used any wrong principles nor come to any wrong conclusion.

Practice - Topic 8326

Costs - Appeals - Costs of appeal - General principles - [See Practice - Topic 7170 ].

Practice - Topic 8361

Costs - Appeals - Appeals from taxation - General (incl. standard of review) - [See Practice - Topic 7170 ].

Practice - Topic 8366

Costs - Appeals - Appeals from taxation - Review of discretion of taxing officer - [See Practice - Topic 7170 ].

Cases Noticed:

Chan and Yip v. Blythe et al., [1998] Sask.R. Uned. 239 (Q.B.), refd to. [para. 7].

Anderson v. Amoco Canada Oil and Gas et al., 1998 CarswellAlta 1567 (Q.B.), refd to. [para. 13].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 567 [para. 7].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987) (Looseleaf), § 208.1.1 [para. 10].

Counsel:

Heather J. Laing, for Richard James Smith;

Bruce W. Wirth, for the City of Saskatoon.

This application was heard by Mills, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on January 28, 2010.