Savoury v. Nova Scotia (Attorney General), 2012 NSSC 270

SUPREME COURT OF NOVA SCOTIA Citation: Savoury v. Nova Scotia (Attorney General), 2012 NSSC 270 Date: 20120718 Docket: Hfx No. 260885 Registry: Halifax Between: George Savoury Plaintiff v. The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia Defendant COSTS DECISION Judge: The Honourable Justice Glen G.

McDougall Heard: November 22, 23, 24, 25, 29, 30, December 1, 2, 22, 23, 2010 and January 4 and 5, 2011, in Halifax, Nova Scotia Written Submissions on Costs: defendant March 29, 2012; plaintiff: March 30, 2012; Counsel: Ann Elizabeth Smith, on behalf of the plaintiff Alexander Cameron, on behalf of the defendant By the Court : [ 1 ] The plaintiff, George Savoury (henceforth the “ plaintiff ” ), unsuccessfully sued his employer, the Province of Nova Scotia (henceforth the “ defendant ” ), for breach of contract and/or negligent misrepresentation.

He also sought declaratory relief regarding his current and future pension entitlement. [ 2 ] The Court left it to the parties to try to reach an agreement on costs failing which counsel were invited to file further written submissions. I have their submissions. The following is my decision.

Issue No. 1: Are costs to be determined in accordance with the Nova Scotia Civil Procedure Rules (1972)? [ 3 ] Counsel for the plaintiff suggests that costs should be determined in accordance with the Nova Scotia Civil Procedure Rules (1972).

The plaintiff began this action by filing a statement of claim on the 10 th day of January, 2006. (It was later amended on March 22, 2009.) As such, submits his counsel, “ ... the costs consequences anticipated by the plaintiff as the litigation was planned would have been considered in light of the Rules then in effect... ” . [ 4 ] A decision by Justice Duncan in Cherubini Metal Works Ltd. v.

Nova Scotia (Attorney General) , 2001 NSSC 429 , at para. 9 was cited in support of this argument: 9 Costs consequences contemplated by the parties as they planned the litigation would have been ascertained by reference to the Rules then in effect. It would be capricious to impose a different regime that was created after the litigation was effectively complete. The 1972 Rules will be applied to assess costs in this case. [ 5 ] The trial of the present case began in 2010 and carried over to 2011. It required 12 days to complete evidence and closing arguments.

Unlike the Cherubini case, supra , the litigation was far from “ effectively complete ” (reference again to para. 9 of Justice Duncan ’ s decision in Cherubini ) when the new Rules of Procedure came into effect on January 1, 2009. Likely, the majority of the work occurred after this date even though a considerable amount of preparatory work would have likely been done before the current Rules came into play. [ 6 ] Rule 92.02(1)(

b) states: Application to outstanding proceedings

(1) Unless this Rule provides or a judge orders otherwise these Rules apply to all steps taken after the following dates in the following kinds of proceedings: (

b) January 1, 2009 in an action started before that day. [ 7 ] This is not a case where I feel a need to exercise my discretion to order a costs determination based on the Nova Scotia Civil Procedure Rules (1972). The matter will, therefore, be determined in accordance with Rule 77 of the Nova Scotia Civil Procedure Rules . Issue No. 2: What is a fair and reasonable award of costs to the successful defendant? [ 8 ] I will address this issue by first referencing the relevant provisions of Rule 77 that help guide the path that leads to the result: 77.02 General discretion (party and party costs)

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except ...

77.06 Assessment of costs under tariff at end of proceeding

(1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act, a copy of which is reproduced at the end of this Rule 77. 77.07 Increasing or decreasing tariff amount

(1) A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs.

(2) The following are examples of factors that may be relevant on a request that tariff costs be increased or decreased after the trial of an action, or hearing of an application: ... (

e) conduct of a party affecting the speed or expense of the proceeding; 77.18 Reference to adjudicator TARIFFS OF COSTS AND FEES DETERMINED BY THE COSTS AND FEES COMMITTEE TO BE USED IN DETERMINING PARTY AND PARTY COSTS .... (

b) where the main issue is a monetary claim which is dismissed, an amount determined having regard to (

i) the amount of damages provisionally assessed by the court, if any, (ii) the amount claimed, if any, (iii) the complexity of the proceeding, and (iv) the importance of the issues; [ 9 ] Once the amount involved is determined Tariff A provides three scales which guide the Court in arriving at the appropriate cost award. The length of trial is an additional factor to be included in calculating costs under Tariff A.

According to the Rules, “ two thousand dollars ($2,000) shall be added to the amount calculated under this tariff for each day of trial as determined by the trial judge. ” Counsel for the defendant has suggested that the amount involved consists of: 1. General Damages:......................................................... $ 40,000.00 2. Damage for loss of opportunity:...................................... $ 137,333.00

3. Special damages in an amount to be placed by the Province (of Nova Scotia) into the Pension Plan based upon recognition of the plaintiff ’ s Newfoundland Service (approx):..................................... $ 180,000.00 Total:............................................................................. $ 357,333.00 [ 10 ] Using Scale 2 (Basic) which I believe is the appropriate scale to use in this instance, the amount of costs is $34,750. Added to this for the 12 days of trial is $2,000 x 12 = $24,000. Together the total cost award is: $34,750 + $24,000 = $58,750.00.

The defendant has not provided a Bill of Costs claiming disbursements nor has counsel referred to it in his brief. As such, my order will reflect a contribution towards the defendant ’ s legal fees only and will not be a reimbursement or contribution to any disbursements the defendant might have incurred during the course of the litigation. [ 11 ] Counsel for the plaintiff suggests the amount involved was considerably less than the figure suggested by opposing counsel.

She also suggests that the trial was needlessly prolonged by the defendant ’ s decision to call certain witnesses which then required the plaintiff to call rebuttal evidence. She suggests the Court should order costs of $25,000 which falls approximately mid-way in the range she puts at $20,250 and $30,750. [ 12 ] She comes up with this range using an amount involved which she estimates is either in the range of $25,000 to $40,000 or, alternatively, in the $125,000 to $200,000 range.

Using Scale 2 of Tariff A and adding $2,000 per day for seven days the results are as earlier stated. [ 13 ] I am not persuaded by the arguments advanced by plaintiff ’ s counsel in determining the amount involved or the need to reduce the actual number of days consumed for trial. [ 14 ] I accept the position advanced by defendant ’ s counsel on how to determine the amount involved.

I also see no reason to disregard the actual number of days of trial in calculating the additional per diem amount to add to the Scale 2 (Basic) amount of $34,750. [ 15 ] I am prepared, however, to reduce the overall amount of the award.

While I was not impressed with the plaintiff ’ s lack of forthrightness in not disclosing pension information he had in his possession prior to being offered a position with the Nova Scotia Department of Community Services, I was equally unimpressed with the approach taken by some senior Department personnel who should have made it more clear to the plaintiff that they were not approving his request for additional pension credits but rather only undertaking to support him in his efforts.

This was particularly so in and around 2001 when the plaintiff, in a chance meeting in the hallway, thanked the then Deputy Minister for approving his request. The Deputy purportedly simply said “ no problem ” according to the plaintiff. Perhaps no one wanted to disappoint him, but ultimately it led to his even greater disappointment. [ 16 ] For these reasons and in accordance with Rule 77.07(2)(

e) and Rule 77.08 which states: 77.08 Lump sum amount instead of tariff A judge may award lump sum costs instead of tariff costs. I award costs, payable by the plaintiff to the defendant, in the lump sum amount of $45,000. Payment to be made within six months of the date of release of this decision unless the defendant agrees on more favourable terms of repayment.

McDougall, J.