The Bowra Group Inc. as Receiver v. Trustee in, 2016 NSSC 301

SUPREME COURT OF Nova Scotia Citation: Certification Coating Specialists Inc. v. Halifax-Dartmouth Bridge Commission , 2016 NSSC 301 Date: 20161108 Docket: HFX450768 Registry: Halifax Between: The Bowra Group Inc. as Receiver and Trustee in Bankruptcy for Certified Coating Specialists Inc. Plaintiff v. Halifax-Dartmouth Bridge Commission operating as Halifax Harbour Bridges, and Cherubini Metal Works Limited Defendants COST DECISION Judge: The Honourable Justice Michael J.

Wood Final Written Submissions: November 2, 2016 Counsel: John Shanks, for the Plaintiff The Bowra Group Inc. as Receiver and Trustee in Bankruptcy for Certified Coating Specialists Inc. Christopher Robinson, QC, and Kevin Gibson for the Defendant Halifax-Dartmouth Bridge Commission operating as Halifax Harbour Bridges Doug Tupper, QC, for the Defendant Cherubini Metal Works Limited Michael Pugsley, QC, for the Intervenor Attorney General of Nova Scotia By the Court: [ 1 ] By decision issued on September 22, 2016, I decided Bowra Group Inc. was not entitled to assert a builders’ lien on the Angus L.

MacDonald bridge or associated lands owned by the Halifax-Dartmouth Bridge Commission ( 2016 NSSC 250 ). The parties have been unable to agree on the cost consequences of that decision. [ 2 ] The application to vacate the builders’ lien was made by Cherubini Metal Works Limited. The Halifax-Dartmouth Bridge Commission filed a one page letter indicating that it supported the application of Cherubini. Legal counsel for the Commission attended the hearing but made no submissions. [ 3 ] The application was initially heard on July 19, 2016.

After submissions were made on behalf of Chreubini counsel for the Attorney General of Nova Scotia, who was in attendance, requested the opportunity to intervene and make written representations on the question of whether the Crown was the owner of the MacDonald bridge. This necessitated an adjournment and the matter was reargued before me on September 6, 2016. [ 4 ] I will briefly summarize the positions of the parties on costs. Cherubini Metal Works Limited

[ 5 ] Cherubini is seeking a cost order of $7,500 against Bowra Group Inc. They argue that they should receive a substantial, but partial, indemnity against their actual costs however provided no evidence as to what those were. [ 6 ] The hearing before me was less than a half day, however Cherubini says if the time for the hearing in July is included the matter should be considered as a full day which would generate an award of $2,000 under Tariff C. They say this is inadequate and does not represent a sufficient indemnity, particularly in light of the complexity of the issues addressed. [ 7 ] Cherubini also relies on para. 4 under Tariff C of Civil Procedure Rule 77 which reads as follows:

(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the Judge presiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending on the following factors: (

a) the complexity of the matter, (

b) the importance of the matter to the parties, (

c) the amount of effort involved in preparing for and conducting the application. (such applications might include, but are not limited to, successful applications for

Summary Judgment, judicial review of an inferior tribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction.) Length of Hearing of Application Range of Costs Less than 1 hour $250 - $500 More than 1 hour but less than ½ day $750 - $1,000 More than ½ day but less than 1 day $1000-$2000 1 day or more $2000 per full day [ 8 ] Cherubini argues that the multiplier in this paragraph should apply because the question of the builders’ lien was determined on the application.

Alternatively, I should exercise my discretion to award $7,500 as an appropriate contribution to their actual expenses. Halifax-Dartmouth Bridge Commission [ 9 ] The Commission filed a one paragraph letter in support of its cost request in the amount of $1,000. It says it filed a written submission and appeared on the motion in support of Cherubini and this should entitle them to costs. Attorney General of Nova Scotia [ 10 ] The Attorney General seeks costs in the amount of $2,500 in light of the length of the hearing and the complexity of the matter.

Counsel for the Attorney General says it was drawn into the litigation because Bowra Group was arguing that the bridge was not Crown property and they wished to oppose that assertion. The Bowra Group Inc. [ 11 ] Bowra takes the position that Cherubini is the only party entitled to costs and it should be in the range of $750 to $1,500.

They say there are no special circumstances which would justify departing from the Tariff C amount which is applicable to an interlocutory decision. [ 12 ] Bowra submits that the Attorney General is an intervenor and there are no circumstances to justify departing from the normal rule that intervenors do not recover costs. The Bridge Commission is also not entitled to costs because of the lack of any meaningful participation on their part.

Disposition [ 13 ] I agree with counsel for Bowra that the Bridge Commission and the Attorney General are not entitled to costs. [ 14 ] The Commission’s only formal involvement was to file a one page letter indicating their support for Cherubini. Although counsel was in attendance at the hearing they made no submissions, nor would I have permitted them to do so since they had filed no brief.

Their participation did not rise to a level which would justify an award of costs in their favour or against them. [ 15 ] The Attorney General chose to participate as an intervenor and normally such participation does not attract cost consequences. The position advanced by the Attorney General was that the Bridge Commission was a Crown entity and therefore s. 3(2) of the Builders’ Lien Act was applicable. It was unnecessary to deal with that issue and the matter was disposed of based upon Cherubini’s argument that s. 3(1) of the Act precluded Bowra’s lien.

In these circumstances I am not prepared to deviate from the normal rule that intervenors should not receive costs. [ 16 ] The reason the application was not dealt with during the initial hearing in July was the decision by the Attorney General to intervene which came up in the middle of the hearing. I do not have any information to explain why the Attorney General did not make the request before that time. The position of Bowra that apparently led to that decision (i.e. that the bridge was not owned by the Crown) is set out in their brief which was filed on June 10, 2016.

I do not believe the aborted July hearing should be attributable to Bowra for purposes of calculating the length of the hearing and associated costs.

[ 17 ] I disagree with the submission by Cherubini that the multiplier in para. 4 of Tariff C is applicable. Although the application disposed of the question of whether Bowra could file a builders’ lien against the bridge, the issue of Cherubini’s contractual obligation to pay Bowra remains alive. This was an interlocutory decision on one aspect of Bowra’s claim and not a final determination of the entire dispute between the parties. [ 18 ] I do not believe that the matter was overly complex. Cherubini’s initial brief was five pages long and referred to one case.

Their reply submission was six pages long and referenced one additional authority. The brief filed by Bowra was ten pages long and included one case. [ 19 ] The Tariff amount for a hearing between one hour and a half day is $750 to $1,500 however I have a discretion to depart from that Tariff where it is just and appropriate in the circumstances to do so. I have considered the unique and public nature of the dispute concerning the validity of a lien on the MacDonald bridge as well as the importance of the issue to the parties.

With the lien in place Cherubini was unable to receive payment for work done on the project. Although the application was not determinative of the whole proceeding it did resolve a significant issue relating to the existence of the builders’ lien. For all of these reasons I will fix costs at $2,500 which shall be payable by Bowra to Cherubini forthwith. Wood, J.