Maritime Associates International Inc. Applicant v. Irving Shipbuilding Inc. Respondent Decision Judge: The Honourable Justice Glen G. McDougall Counsel: W.H. Thurlow v. John Boyle,, 2019 NSSC 330

SUPREME COURT OF Nova Scotia Citation: Maritime Associates International Inc. v. Irving Shipbuilding Inc ., 2019 NSSC 330 Date: 20191107 Docket: 485010 Registry: Halifax Between: Maritime Associates International Inc. Applicant v. Irving Shipbuilding Inc. Respondent Decision Judge: The Honourable Justice Glen G. McDougall Counsel: W.H.

Thurlow and John Boyle, for the Applicant/Respondent on the Motion Scott Campbell and Michelle Chai, for the Respondent/Mover of the Motion By the Court: [ 1 ] On February 11, 2019, Maritime Associates International Inc. (“MAII”) filed a Notice of Application in Court seeking a declaration and consequent damages for an alleged breach of its subcontract with Irving Shipbuilding Inc (“ISI”). [ 2 ] ISI filed a Notice of Contest and Notice of Respondent’s Claim on March 4, 2019.

MAII responded by filing a Notice of Contest of Respondent’s Claim on April 5, 2019. [ 3 ] ISI then filed a Notice of Motion (Security for Costs) on April 11, 2019, seeking an Order compelling MAII “to pay security for costs in the amount of $76,750.00, or such other amount as this Honourable Court deems fit, within ten days of the issuance of the Order”. ISI also asked for costs of the Motion. [ 4 ] The Motion was argued before me on Wednesday, July 10, 2019. The hearing last for a little more than 2.5 hours. An oral decision was given two weeks later on July 24, 2019.

That required counsel to appear, once again, in person for approximately one-half hour. It was left to counsel for the parties to try to reach an agreement on costs failing which the Court would receive their written submissions on the issue. The Court pointed out that success was mixed given the ruling that would require MAII to pay $25,000.00 (not the $76,750.00 sought by ISI) into Court as Security for Costs and giving it 30 calendar days (not the ten days suggested by ISI) to do so. [ 5 ] I thought counsel would consider my comment and agree to settle on terms that reflected what I thought was a mixed result.

That did not happen. ISI’s Position [ 6 ] Counsel for ISI seek costs of $1,000.00 based on Tariff C. They also ask for disbursement costs of $6,881.77, the bulk of which was paid to agents retained to investigate the extent of assets owned by MAII, both in Canada and in the United States of America. MAII’s Position [ 7 ] Counsel for MAII submit that no costs should be awarded or, alternatively, that it be left to be determined in the cause. [ 8 ] In support of this position, counsel points out that:

1. Success was mixed; 2. Given MAII’s weak financial position, a costs award would only further hinder access to justice; and 3. The disbursements incurred by ISI added little value to the proceeding and were excessive considering the scope of the motion. Disposition [ 9 ] Rule 77 lends considerable discretion to the presiding judge to “make any order about costs as the judge satisfied will do justice between the parties.” [See CPR 77.02(1)]. [ 10 ] Furthermore, Tariff C which applies to motions heard in Chambers lists certain guidelines, one of which states:

(2) Unless otherwise ordered, the costs assess following an application shall be in the cause… …the guidelines are not intended to better the exercise of discretion which is clear when one looks at the third guideline which, in part, states: (3) ..., a Judge..., notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application. [ 11 ] ISI’s motion was successful but the amount set for security for costs was significantly less than what was sought. In fact, it was less than one-third of what was asked for.

I am prepared to order that MAII pay costs of $500.00 to reflect the somewhat mixed results achieved. Costs will be in the cause. [ 12 ] As for disbursements, I find the lengths to which ISI went in establishing the need to have Security for Costs was much more than what is necessary in the circumstances of this case. And, as such, the amount claimed is unreasonable. [ 13 ] I order that MAII’s contribution towards the disbursements incurred by ISI be limited to $250.00 which will cover the filing fee and most of the administrative charges incurred.

As with legal fees, this will be made payable in the cause for a total of $750.00. [ 14 ] Counsel for ISI is asked to prepare the Order for MAII counsel’s approval prior to filing. McDougall, J.