Date: 19971016 Docket: CA 139151
NOVA SCOTIA COURT OF APPEAL
Cite as: Merzbach v. McSween, 1997 NSCA 158
Chipman, Hart and Jones, JJ.A.
BETWEEN:
ENGELBERT MERZBACH )
and LIESELOTTE MERZBACH ) Michele E. Bernard,
) for the Appellants
Appellants )
)
)
- and - )
)
) Clarence A. Beckett, Q.C.,
) for the Respondents Haugg & LeMoine
ELEANOR AGNES MCSWEEN, )
ALAN NELSON, MORRIS ) Jerome T. Langille,
J. HAUGG, and HICKS, ) for the Respondents McSween & Nelson
LEMOINE, a registered )
partnership, ) )
)
)
)
Respondents )
)
) Appeal Heard:
) October 16, 1997
)
) Judgment Delivered:
) October 16, 1997
)
)
)
THE COURT: The appeal is allowed with costs as per oral reasons for judgment of Chipman, J.A.; Hart and Jones, JJ.A., concurring.
The reasons for judgment of the Court were delivered orally by:
CHIPMAN, J.A.:
This is an appeal from a decision of Scanlan, J. in Chambers, awarding solicitor-client costs against the appellants on a motion granting amendments to the appellants' statement of claim, for the time and expense of consequent amendments by the respondents of their defences, and any further discovery examination of the appellants' necessitated by the amendments.
The decision of the Chambers judge was made in the exercise of a discretion which will not be interfered with on appeal unless wrong principles of law were applied or a patent injustice would result.
The general rule is that amendments to pleadings, even substantial ones, will be granted in the absence of bad faith if no injustice results that cannot be compensated by costs.
This Court has made it clear that an award of solicitor-client costs is not to be made except in exceptional circumstances. In Brown v. Metropolitan Authority et al. (1996), 150 N.S.R. (2d) 43, Pugsley, J.A., said at p. 55:
While it is clear that this Court has the authority to award costs as between solicitor and client, it is also clear that this power is only exercised in rare and exceptional circumstances, to highlight the court's disapproval of the conduct of one of the parties in the litigation (Wournell (P.A.) Contracting Ltd. et al. v. Allen (1980), 37 N.S.R.(2d) 125; 67 A.P.R. 125 (C.A.)).
This court has refused to award costs as between solicitor and client even though the conduct of the party in question has been found to be reprehensible. (Lockhart v. MacDonald (1980), 42 N.S.R.(2d) 29; 77 A.P.R. 29 (C.A.) Warner v. Arsenault (1982), 53 N.S.R.(2d) 146; 109 A.P.R. 146 (C.A.))
The word "reprehensible" is defined in The Concise Oxford Dictionary (1990) as "deserving censure or rebuke".
The conduct of the Authority, in my opinion, deserves that description.
There is, however, a difference between reprehensible conduct as demonstrated here, and those rare and exceptional circumstances which attract the sanction of costs as between solicitor and client. In my opinion, the Authority's actions do not cross that line, and accordingly, I would not award costs as between solicitor and client.
The respondents urge that this principle should not apply to interlocutory motions or applications to amend pleadings. We do not agree.
While the appellants conceded before the Chambers judge that the amendments were "substantive", and while brought at a late stage, the matter had not yet been set down for trial. There was no reprehensible conduct on the part of the appellants. The situation called for an award of costs to compensate the respondents, but not solicitor-client costs. In this respect, the Chambers judge erred in the exercise of his discretion.
That part of the order of the Chambers judge respecting costs on a solicitor-client basis is set aside. The respondents will recover costs of the motion before the Chambers judge and consequent amendments, which we fix at $750.00 each, inclusive of disbursements. The costs of any further discovery of the appellants, necessitated by the amendments, will be paid by them on a party and party basis to be taxed in any event in the cause.
The appellants have substantially succeeded on this appeal, but not entirely - having sought an order for no costs. They will, therefore, recover costs against the respondents in the total amount of $1,000, inclusive of disbursements, to be offset against the respondents' award of costs.
Chipman, J.A.
Concurred in:
Hart, J.A.
Jones, J.A.