Sheldon Garland Plaintiff v. Stanley Dawe Defendant Tonya Berk Plaintiff v. Stanley Dawe v. Sheldon Garland, 2003 NSSC 68

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Sheldon Garland v. Stanley Dawe, Tonya Berk v. Stanley Dawe and Sheldon Garland, Stanley Dawe v. Sheldon Garland, 2003NSSC068 Date: 20030327 Docket: SN No.108527, SN No. 110424, S.AT. 2237 Registry: Sydney Between: Sheldon Garland Plaintiff v. Stanley Dawe Defendant Tonya Berk Plaintiff v. Stanley Dawe and Sheldon Garland Defendants Stanley Dawe Plaintiff v. Sheldon Garland Defendant Judge: The Honourable Justice Frank Edwards Heard: February 3, 4, 5, 2003, Sydney, Nova Scotia Written Decision: March 27, 2003 Counsel: Lisa Fraser-Hill for the Plaintiff Tonya Berk

James C. MacIntosh for the Plaintiff Stanley Dawe Michael A. Tobin for the Plaintiff Sheldon Garland Christa M. Hellstrom and Tyana Caplan for the Defendant Stanley Dawe Jocelyn M. Campbell for the Defendant Sheldon Garland By the Court: [ 1 ] I have now had an opportunity to review the lengthy and comprehensive post-trial written submissions on costs. [ 2 ] The successful Defendant Garland’s submission is that Counsel for the Defendant Dawe should have recognized that Dawe was 100 percent liable for the collision.

Counsel suggests that this determination ought to have been made shortly after discoveries were concluded. Dawe had taken the position that settlement discussions could only proceed on the basis of shared liability. [ 3 ] I am satisfied that Counsel for Dawe took a reasonable position. Counsel for Garland does not give Dawe’s Counsel sufficient credit for agreeing to have the liability issue determined separately. This concession undoubtedly saved the parties an enormous investment in time and money.

The case involved only two and one half days of evidence with no expert witnesses. [ 4 ] One cannot overemphasize the advantage that a trial judge has when assessing evidence both during and after a trial. The trial judge sees the witnesses for both sides examined and cross-examined . In this case, while both sides demonstrated admirable advocacy shills, it was the witnesses for the Defendant Dawe (including Dawe himself) who did not pass muster.

In this case, I do not believe it would be fair for me to conclude that Dawe’s Counsel should have reached the same conclusion pre-trial that I reached post- trial. [ 5 ] In particular, I cannot fault Dawe’s Counsel for placing a lot of reliance upon the independent witness Shaw. Pre-trial, I am satisfied that Counsel might reasonably determine that Shaw’s evidence could compensate for any perceived weakness in Dawe’s. Counsel may still believe that. The assessment of credibility is not a science. It was only after I had heard both the direct and cross of Ms.

Shaw, and considered her evidence in the context of all the other evidence, that I came to the conclusions articulated in my decision. [ 6 ] This is not a straightforward situation, the accident occurred in peculiar circumstances. None of the lawyers acted unreasonably. While the situation was not straightforward, the evidence was not complicated or technical. [ 7 ] As Counsel for Garland pointed out, the underlying philosophy of a costs award is that the successful party be substantially indemnified for the costs of defending the action. Unfortunately, the existing tariff is now out of date.

Strict adherence to it conflicts with the underlying philosophy of costs. [ 8 ] Counsel for Garland says that Defence costs (professional fees and disbursements) amounted to $52,292.40. If I set an “amount involved” under the tariff at $100,000.00 (one half of Dawe’s claim), Garland would be entitled to $7,345.00 (Scale 3) plus disbursements of $3,250.00 for a total of $10,595.00. In other words, Garland would get approximately 20 percent of his actual costs. Hardly a reasonable, let alone, “substantial” contribution. [ 9 ] I believe a more appropriate figure would be costs of $15,000.00 plus disbursements.

Accordingly, the Defendant Dawe shall pay costs plus disbursements of $18,250.00 directly to the Defendant Garland. Order accordingly. J.