Drum Head Estates Ltd. v. Chapin Estate, 2013 NSCA 132

Nova Scotia Court of Appeal Citation: Drum Head Estates Ltd. v. Chapin Estate , 2013 NSCA 132 Date: 20131121 Docket: CA 415798 Registry: Halifax Between: Stephen Beal Chapin, Drumhead Estates Limited, Angela Chapin, Celia McClure, and Joseph McClure Appellants v. Ann Chapin Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: November 18, 2013, in Halifax, Nova Scotia Subject: Costs – Discontinuance – Civil Procedure Rules 9.06 and 77

Summary: Application for leave and, if granted, appeal of costs awarded following discontinuance of proceeding. Issues: Whether Chambers judge erred by failing to address Tariff F in his decision. Result: Leave granted but appeal dismissed. No error in the judge’s exercise of discretion which would attract appellate intervention. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 2 pages. Nova Scotia Court of Appeal Citation: Drum Head Estates Ltd. v. Chapin Estate , 2013 NSCA 132 Date: 20131121 Docket: CA 415798 Registry: Halifax Between: Stephen Beal Chapin, Drumhead Estates Limited,

Angela Chapin, Celia McClure, and Joseph McClure Appellants v. Ann Chapin Respondent Judges: Oland, Fichaud and Scanlan, JJ.A. Appeal Heard: November 18, 2013, in Halifax, Nova Scotia Held: Leave to appeal is granted but the appeal is dismissed with costs, per reasons for judgment of the Court Counsel: G. F. Philip Romney, for the appellants Angela Chapin and Drumhead Estates Limited Kathryn M. Dumke, for the respondent By the Court: [ 1 ] At the conclusion of the hearing of the appeal, we granted leave to appeal, dismissed the appeal, and advised that short reasons would follow.

These are those reasons. [ 2 ] In his unreported oral decision and his Order dated May 10, 2013, Coughlan, J. set costs following the respondent’s filing of a Notice of Discontinuance. In his reasons, the Chambers judge reviewed the litigation between the parties which included the filing of defences and applications for security of costs but did not proceed further, and the reasons for discontinuance; and referred to Civil Procedure Rule s 9.06 and 77.

He ordered that costs of $1,250 be paid to each of the appellants, Angela Chapin and Drumhead Estates Limited, from an amount held as security for costs, and the remainder released. The appellants seek leave to appeal and, if granted, appeal his Order. [ 3 ] Although the appellants argue that the judge erred in not mentioning Tariff F of Rule 77 in his decision, that Tariff, suggestions as to “the amount involved” and actual legal fees were before him in pre-hearing briefs and oral submissions. The judge stated that he set costs after considering “all the circumstances of this case”.

This court will not interfere with a discretionary order, unless wrong principles of law have been applied or an obvious injustice would result: DRL Coachlines Ltd. v. GE Canada Equipment Financing G.P. , 2011 NSCA 23 at ¶ 10 . We see no error in the judge’s exercise of discretion in setting costs which would attract appellate intervention. [ 4 ] We would grant leave but dismiss the appeal, and order the appellants, Angela Chapin and Drumhead Estates Limited, to jointly and severally forthwith pay to the respondent, Ann Chapin, appeal costs in the amount of $1,000 inclusive of disbursements. Oland, J.A.

Fichaud, J.A. Scanlan, J.A.