Roué v. Nova Scotia, 2013 NSSC 322

SUPREME COURT OF NOVA SCOTIA Citation: Roué v. Nova Scotia, 2013 NSSC 322 Date: 20131007 Docket: Hfx. No. 407754 Registry: Halifax Between: Joan Elizabeth Roué and Lawrence James Roué Applicants v.

Her Majesty the Queen in Right of the Province of Nova Scotia, Lengkeek Vessel Engineering Inc., Lunenburg County Shipwrights Incorporated, carrying on business as Covey Island Boatworks, Lunenburg Foundry & Engineering Incorporated, Lunenburg Shipyard Alliance Limited, MHPM Project Managers Incorporated, and Snyder ’ s Shipyard Limited Respondent Judge: The Honourable Justice Peter Rosinski Heard: July 30, 2013, in Halifax, Nova Scotia Final Written Submissions: September 6, 2013 Counsel: Robert Belliveau, Q.C. and Michael Blades, counsel for the Applicants Edward Gores, Q.C., (Steven B. Garland), Kevin K.

Graham, co-counsel for the Respondent Her Majesty the Queen in Right of the Province of Nova Scotia (Steven B. Garland) and Kevin K. Graham, counsel for all remaining Respondents By the Court : [ 1 ] Regarding my decision herein 2013 NSSC 254 , the parties were invited to agree on a costs award, but regrettably have been unable to do so.

It therefore falls to me to decide the issue based upon a review of my decision, and the legal arguments from the Roués [contained in letters dated September 6 and 10th 2013] and the Respondents [contained in two letters both dated September 6, 2013]. [ 2 ] The Roués claim $2000 plus disbursements of $608.71. The Respondents argue that the parties should bear their own costs.

[ 3 ] On July 15 the Roués filed a Motion seeking from the Respondents: "an index listing and describing the documents over which each of the Respondents claim privilege, including the type of privilege claimed in each case, excluding documents which are communications between each Respondent and outside legal counsel [the Privilege Motion]; and an order authorizing the issuance of a discovery subpoena [application] to Rory MacDonald [the Subpoena Motion].

Those motions were set down for hearing on July 30, 2013. [ 4 ] The Roués requested that the Court consider hearing another motion at the same time, and the Court approved this request such that a second motion formally filed July 17, 2013 was set down for hearing on July 30, 2013.

In that motion the Roués sought an order "for production forthwith of the following contracts by the parties thereto all of which are Respondents" [the Contracts Motion]. [ 5 ] While the parties had had communications regarding these issues, nevertheless it is fair to say that the motions were set down on short notice, in order to have the matter is resolved expeditiously so as not to interfere with the time lines set by the Court after the motion for directions for this Application in Court. [ 6 ] The Court recognizes and appreciates that all the parties made extraordinary efforts to have these matters heard on July 30. [ 7 ] In the result the Court ordered as follows: 1.

That the Respondents provide the sought after listing of privilege claimed relevant documents to the Applicants [paragraph 70 - 71 decision]; 2. That "no discovery subpoena should be issued at this time for Rory MacDonald" because no discovery of Marius Langkeek , designated discovery manager for Lengkeek Vessel Engineering Inc. [for which Mr. MacDonald was working at all material times] had yet taken place - that is, it was premature to consider issuing a discovery subpoena for Mr. MacDonald [paragraph 87 decision]; 3.

That "the Respondents forthwith comply with the Rules in issue here and in effect disclosure/production of "all contracts between the various Respondents relating to the 'Project' as that term is defined in the pleadings [the Contract]" [paragraph 110 decision]. [ 8 ] I note that the two motions involving these three issues were heard July 30 between 1:30 p.m. and 5: 20 p.m. with the Decision being reserved.

There were a significant amount of materials filed in support of the motions. [ 9 ] Typically costs are awarded to those parties who are substantially successful, and Tariff C is applicable pursuant to CPR 77.05. Tariff C may be adjusted to greater or lesser amounts depending on a number of factors, some of which are expressly noted in CPR 77.07.

Tariff C itself contains guidelines for multiplying the maximum amounts in the range of costs by two, three or four times depending on the complexity of the matter, the importance of the matter to the parties, and the amount of effort involved in preparing for and conducting the motions. The guidelines suggest that for matters involving a hearing of more than one hour, but less than half a day, a range of $750 -$1000 is appropriate.

For matters involving more than one half day, but less than one full day, $1000-$2000 is appropriate. [ 10 ] In this case, having taken into account the arguments presented by the parties to support their respective positions, I conclude as follows: 1. The hearing took more than one half day, but less than one full day; 2. The Roués were substantially successful on the privilege and contracts motions, and were substantially unsuccessful on the discovery subpoena motion;

3. While the jurisprudence regarding the privilege motion was in a somewhat undeveloped state, on balance it was foreseeable that such a motion would be granted in favour of the Roués; 4. While the jurisprudence regarding the discovery subpoena motion was more developed, that motion was more factually driven in any event, and on balance it was foreseeable that such a motion would not be granted in favour of the Roués; and 5.

The jurisprudence regarding the contracts motion was well-developed, and the Respondents ’ legal arguments in support of their resistance to providing the contracts to the Roués, though ultimately also fact driven, were on balance foreseeably destined to fail. [ 11 ] I acknowledge that any costs award should reflect the reality that three distinct matters were heard within the time period in question here, rather than just one motion. The Rules make it clear that it's not only the actual time required to hear the motion that will determine the costs award.

Conclusion [ 12 ] If the Roués had been successful on all three motions, the guideline suggests an award between $2000 and $3000 is appropriate, plus disbursements, given the reality that three distinct matters were heard. [ 13 ] Given that the Roués have been substantially successful, and that it was reasonably foreseeable, on two of the three matters, I find a costs award of $2000, plus $608.71 for disbursements is appropriate here. That amount is payable in any event of the cause, and forthwith. Rosinski, J.