Citation: Savoury v. Nova Scotia (Attorney General), 2013 NSCA 36
Date: 20130320
Docket: CA 389970
Registry: Halifax
Between:
George Savoury
Appellant
v.
The Attorney General of Nova Scotia representing
Her Majesty The Queen in Right of the Province of Nova Scotia
Respondent
Judges: Fichaud, Hamilton and Beveridge, JJ.A.
Appeal Heard: November 22, 2012, in Halifax, Nova Scotia
Held: Appeal dismissed with costs payable to the respondent in the amount of $10,000, inclusive of disbursements, per reasons for judgment of Beveridge, J.A.; Hamilton and Fichaud, JJ.A. concurring.
Counsel: Ann E. Smith and Leon S. Tovey (Articled Clerk), for the appellant
Alexander M. Cameron, for the respondent
Reasons for judgment:
INTRODUCTION
[1] An employee of the Province of Nova Scotia sued his employer because he says he was promised that his years of pensionable service as an employee in Newfoundland’s civil service would be transferred to Nova Scotia’s pension plan.
[2] The problem was not that such a transfer did not occur. It did. But the cash that was transferred from the Newfoundland pension plan for the appellant’s 15 years and three months of pensionable service only purchased approximately half of that amount of service in the Nova Scotia pension plan. To receive the equivalent pensionable service under the Nova Scotia plan, as of 1989 the appellant would have had to contribute an additional $42,920.94.
[3] At various times, the appellant said he accepted that he would contribute the money needed to the Nova Scotia pension plan to create the same amount of pensionable service. He never did so. Over the ensuing years, the appellant tried to get the Province to make up the difference. In 2001 he claimed that he was assured that the Province had agreed to do so. The Provincial officials told him he misunderstood.
[4] The appellant did not sue until 2006. The claim was for breach of contract and negligent misrepresentation. The trial judge was the Honourable Justice Glen G. McDougall. After a lengthy trial, he reserved his decision. In written reasons, he dismissed all of the appellant’s claims on the merits and also found that the Limitation of Actions Act, R.S.N.S. 1989, c. 258 was an insurmountable barrier to the claims (2012 NSSC 70).
[5] The appellant asks that we overturn the decision of the trial judge on the basis of various claimed errors of both law, fact, and of mixed law and fact. For essentially the reasons advanced by the able written and oral submissions of counsel for the respondent, Mr. Cameron, I see no basis to disturb the findings made by the trial judge or the result.
BACKGROUND
[6] To put into context the evidence that unfolded at trial, an outline of the appellant’s claim is necessary. The appellant’s Statement of Claim alleged that in December 1988, “representatives of the Province of Nova Scotia advised Mr. Savoury that he was entitled to transfer all of his pensionable service pursuant to the Newfoundland Act to the Nova Scotia Public Service Superannuation Act, R.S.N.S. 1989, c. 377, ... without additional costs to him.” He alleged that in accepting the offer of employment, he relied on the advice given to him by the Province’s representatives concerning his right to receive full credit for his pensionable service, and it was a term of his employment contract that the Province would do so. The appellant also pled that in January 2001, he was advised by the Province that the Deputy Minister of Community Services had approved the transfer of all of his pensionable service without further cost. This, he said, constituted a contractual commitment that was also breached.
[7] In the alternative, the appellant asserted the Province negligently misrepresented to him at the time of his hire, and in January 2001, that he was entitled to transfer all of his pensionable service, and he relied on those representations to his detriment, which statements the Province knew or ought to have known to be false.
[8] By way of remedy, the appellant sought a declaration that he was entitled to be credited with the equivalent pensionable service of 15 years and three months as of January 1989; special damages equivalent to the difference in monetary value of his pension and the value it would have been had he been credited, as he believed he should have been in January 1989; damages for loss of opportunity in receiving a 70% pension commencing in August 2008 and income he would have received from another employer or from work as a private social work practitioner; general damages and prejudgment interest.
[9] The respondent twice sought particulars, principally about what was said and by whom in 1988 or 1989 about the appellant’s ability to transfer his pensionable service from Newfoundland to Nova Scotia. The most the appellant could say in his formal replies was that it was either Joseph MacKinnon, then Director of Field Services and Personnel, or David McEachern, Consultant, Family and Children Services, who spoke to him about transferring his pension; and that they failed to inform him that there may be a shortfall in the quantity of pensionable service due to different contribution and interest rates between the two plans. With this framework in mind, I will turn to the evidence and the findings of the trial judge.
[10] There is no need to repeat or review all of the details of the documentary and viva voce evidence adduced at trial. For the most part, highlights will suffice. Details can be added where necessary to understand why the trial judge dismissed the claims and the appellant’s complaints of how the trial judge erred in doing so.
[11] The appellant worked for the Government of Newfoundland and Labrador from 1972 to October 20, 1987. He resigned from his $61,000 per annum position as Assistant Deputy Minister of the Department of Social Services. Approximately six months later, on April 28, 1988, he spoke with David Lidstone, Pension Benefit Specialist with the Newfoundland Department of Finance. He asked questions about the value of his pension. Later that same day, the appellant wrote to Mr. Lidstone asking specific questions. He wanted to know the value of his pension now, assuming he was in fact 60 years of age; and his monthly and annual benefit at age 60 based on the 5% compound interest.
[12] Mr. Lidstone replied in a letter dated June 16, 1988. He interpreted the appellant’s request as an inquiry for a comparison of pension entitlement versus a refund of pension contributions. Based on his 15 years and seven months pensionable service, and five year average salary, he would receive $16,299.15 per year, but because the Newfoundland plan was integrated with the Canada Pension Plan, his provincial pension would be reduced when he started receiving CPP benefits. All increases granted to pensions would apply to his pension. If he sought a refund of his pension contributions, he would receive his contributions of $24,066.11 plus interest at 5% ($8,263) for a total of $32,329.11.
[13] The appellant applied for a number of different positions. He testified that he had positive interviews and job offers, but was reluctant to move out West or to Northern Ontario. The position as a consultant in Nova Scotia with the Department of Community Services was attractive to him. He accepted the offer of probationary employment, effective January 16, 1989.
[14] There is little documentation about the circumstances of the appellant’s hire. What there is did not support any discussion or representation about pension. Joseph MacKinnon wrote to the appellant on December 20, 1988. This letter confirmed the Department of Community Services’ recommendation to the Civil Service Commission for the appellant’s appointment as a probationary employee for the position of Consultant at an annual salary of approximately $48,000, effective January 16, 1989. The appellant was advised to report to William Greatorex on that day. The appointment was duly confirmed in writing by the Deputy Minister of the Civil Service Commission on January 5, 1989. The appellant responded in writing. Nothing was said about transfer of pensionable service.
[15] Shortly after the appellant started his employment, he requested the necessary forms to effect a transfer of his pension from Newfoundland to Nova Scotia. He received a document entitled, “Schedule “A” – “Application for Transfer of Funds and Pensionable Service”. It was addressed to the Ministers of Finance for both Provinces. The appellant filled out the form, had it witnessed and sent it to Nova Scotia Department of Finance for processing. The form said:
SCHEDULE “A”
APPLICATION FOR TRANSFER OF FUNDS AND PENSIONABLE SERVICE
TO: The Minister of Finance
Division of Public Service Pensions
Province of Nova Scotia
P. O. Box 187
Halifax, Nova Scotia
B3J 2N3
TO: Minister of Finance
Province of Newfoundland
P. O. Box 4750
St. John’s, Newfoundland
A1C 5T7
I, George R. Savoury of Dartmouth in the Province of Nova Scotia understand and accept the terms and the conditions of the Reciprocal Agreement between the Province of Newfoundland and the Province of Nova Scotia regarding their respective pension plans, said Agreement being dated the 15th day of September, 1986, and request the transfer from the pension plan established for its employees by the Province of Newfoundland to the pension plan established for its employees by the Province of Nova Scotia, the sum of money which is transferable pursuant to Clause 4 of said Agreement. In consideration of said transfer I hereby release and forever discharge Her Majesty the Queen in Right of the Province of Newfoundland from all manner of actions, claims and demands whatsoever which against Her Majesty, I or my estate ever had, or now have, by reason of any pension, return of contributions or any other like benefit that I was entitled or eligible to receive from the pension plan established by the Province of Newfoundland. I request that the pensionable service accrued by me under that pension plan be credited to me to the extent provided in Clause 5 of the said Agreement as pensionable service under the pension plan by the Province of Nova Scotia.
[Emphasis added]
[16] The appellant testified he did not read this document. As the highlighted words plainly indicate, the transfer of the monies from Newfoundland is determined by the terms of the Reciprocal Agreement between the provinces. The Reciprocal Agreement was not given to the appellant. He did not request it. The trial judge found (para. 16):
Even a cursory reading of the Reciprocal Agreement makes it clear that if the dollar amount transferred is less than what the importing plan requires to give comparable service credit it shall be treated as a deficiency (Reciprocal Agreement – clause 5(3)(a)(I)). The employee is given the option of buying back the pensionable service either by way of lump sum or by choosing to pay a higher amount by way of instalments over time. ...
[17] The process described in the Reciprocal Agreement was followed. The request for transfer was sent to Newfoundland. Newfoundland provided a certified copy of the appellant’s pensionable service and salary. Nova Scotia then calculated the amount needed to credit that service and salary under this Province’s pension plan. This came to $110,455. Newfoundland calculated the monetary value of the appellant’s pension to be $67,534.06, made up of his contributions and the matching employer’s contributions plus interest at 5%. To get 15 years, three months and 22 days of pensionable service under the Nova Scotia plan, the appellant was required to pay by lump sum or installment the amount of $42,920.94.
[18] The appellant was immediately notified of this by letter dated June 20, 1989 from Dianne Woodley and Gordon Sturdy, employees of the Nova Scotia Department of Finance. The appellant’s response to Mr. Sturdy of June 26, 1989 pointed out a possible error regarding the dates of his pensionable service in Newfoundland. There was no mistake about the recitation of his having earned 15 years, three months and 22 days service. His letter said nothing about misrepresentations, breach of contract or even a misunderstanding. Instead he wrote:
In addition, I would greatly appreciate receiving a copy of the detailed breakdown of salary and pension benefits paid during my employment with the Province of Newfoundland.
will be in contact with you at a later date regarding my decision to purchase prior service under the Public Service Superannuation Act.
[19] The appellant wrote to his immediate supervisor, William Greatorex, on August 3, 1989. He attached the correspondence that documented the deficiency of $42,920.94 and requested he pursue “this matter” with the Deputy Minister at that time, Mr. Moir, with a view to obtaining his pensionable service of 15 years, three months and 22 days. Inquiries were made. Newfoundland said there was nothing that could be done. Apparently, the appellant let it be known that he reluctantly accepted the decision and would consider purchasing the pensionable service.
[20] On September 4, 1990, the appellant wrote to the Nova Scotia Director of Public Service Pensions. He copied it to David Lidstone, Pension Benefit Specialist in Newfoundland. He again inquired about returning the money to the Newfoundland pension fund. As to the cost of making up the deficiency for equivalent pensionable service under the Nova Scotia plan, it had grown to $59,277.77. He said he did not wish to pursue the option of making up the deficiency. For the very first time he said:
The transfer of my pensionable service was done on the basis that the Province of Nova Scotia would grant the equivalent years of service without additional costs. I was certainly not aware that by transferring to the Province of Nova Scotia, I would still have to pay to simply enable me to receive credit for the same number of years that I have worked.
[21] It was therefore almost a year and a half after being aware of the additional cost required to have the same amount of pensionable service under the Nova Scotia plan that the appellant first said to a government official he thought he would get the equivalent pensionable service without additional cost. The trial judge also found it telling that the appellant’s letter did not suggest he had been misled by anyone.
[22] In June 1991, the appellant wrote to Mr. Sturdy of the Nova Scotia Department of Finance that he had “pretty well decided to buy the additional years of pensionable service”. He did not in fact do so. In November 1993, the appellant first officially sought a copy of the Reciprocal Agreement. After reading it, he formed the view that it was the Province of Newfoundland that had short-changed him. Newfoundland said it had not. At least some of the correspondence on this approach was sent by the appellant to Joseph MacKinnon with a covering memorandum. It made no mention of any purported misrepresentation or even any information having been provided by Mr. MacKinnon at the time of the appellant’s hiring.
[23] Over the ensuing years further attempts were made by the appellant to have the Province of Nova Scotia pay the deficiency for him. These attempts were described by the trial judge as follows:
[48] Instead of coming to grips with the problem or simply letting it go, Mr. Savoury continued to try and enlist the help of his superiors within the Department of Community Services. The new Administrator, Family and Children's Services, Ms. Jane E. Fitzgerald wrote to Mrs. Kate Martin – Director, Personnel and Payroll, Finance and Administration, Department of Finance – on January 8, 1996 stating:
I understand that our Deputy has requested your assistance in resolving the difficulty Mr. Savoury has been experiencing in receiving pensionable credit for his entire public service with the province [sic] of Newfoundland.
[49] Reference is made to an attached draft memorandum titled: Memorandum to Priorities and Planning Committee. The draft memorandum, if approved, was intended to be presented to Priorities and Planning, a sub‑committee of Cabinet, by the Minister of the day, The Honourable Dr. Jim Smith, M.L.A. Mr. Savoury had a hand in drafting this memorandum. The amount that would be needed to fully fund the deficit as of January 9, 1996 had grown to $83,639.81. This figure was provided to Mr. Savoury by Dianne Woodley by letter dated January 19, 1996.
[50] On February 20, 1996 in a letter marked "Private & Confidential" Kate Martin wrote back to Ms. Fitzgerald with a copy to Dr. Patricia N. Ripley – the then Deputy Minister of Community Services – and Dianne Woodley. In her letter she wrote:
This matter has been researched with the Department of Finance, Public Service Pensions Section and I regret to advise that it is not the practice of the Province of Nova Scotia to pick up and assume the pensionable costs for employees who experience pension shortfalls when transferring pensions from one province to another.
[51] Although it does not appear that Mr. Savoury was copied in on this letter it must have been abundantly clear to him by then that it would take a special arrangement in order to accommodate his request. And furthermore, the approval for such a request would have to have the recommendation of the Minister of the Department of Community Services and go through the Department of Finance for final approval by the powerful Priorities and Planning Committee of Cabinet. Mr. Savoury presumably knew this as he was involved in the preparation of the draft memorandum referred to earlier.
[24] The memorandum to Priorities and Planning did not go to forward. Four years later the appellant again sought relief. He did so by sending a memorandum to his superior dated November 27, 2000. This memo made the following request: “I would therefore appreciate it if you would pursue the resolution of this matter on my behalf with Mr. Ed Cramm, our Deputy Minister”. Attached was the 1996 Memorandum to the Priorities and Planning Committee drafted by the appellant. The memo of November 27, 2000 and related materials made their way to the Deputy Minister.
[25] A meeting with the Deputy Minister occurred on January 17, 2001. The appellant was not present. The trial judge described the events at that meeting and thereafter:
[60] Mr. Savoury's request "to pursue the resolution of this matter" was discussed at a meeting which took place on January 17, 2001. In attendance were the Deputy Minister of Community Services, Ed Cramm, along with Bob Fowler and Barb Burley. Ms. Burley was authorized to tell Mr. Savoury that his request had been approved. Mr. Savoury interpreted this to mean that he would finally receive credit for all his pensionable service while in the employ of the Province of Newfoundland and Labrador without any additional cost to him.
[61] The following day, in a chance meeting with the Deputy, Mr. Cramm, when exiting an elevator, Mr. Savoury thanked the Deputy for granting the approval. According to Mr. Savoury, Mr. Cramm said "no problem" and added that the necessary paperwork was being prepared.
[62] What, in effect, had been approved was exactly what had been requested by Mr. Savoury. The necessary paperwork first required an exploration of options along with an estimate of the financial ramifications of each. To this end, George Hudson retained the services of Michele A. Wood‑Tweel, CA, CFP of KPMG Chartered Accountants, to advise the Department.
[63] While this was going on Mr. Savoury exchanged several email messages with Mr. Hudson. On 6/4/01 at 4:46:02 p.m. Mr. Savoury inquired of Mr. Hudson:
... if you been [sic] able to complete the work including payment so that I am credited with all of my service with the Province of Newfoundland as per the approval of January 17, 2011.
[64] Wasting little time Mr. Hudson replied to this email with an email of his own about 12 minutes later in which he stated, amongst other things:
Just as a point of clarification, and with specific reference to "... including payment ..." our task is to provide the DM with an analysis of options and costs for those options.
[26] In January 2002, government officials met with the appellant. He was told that absent substantiating information to support a claim to fully honour, without cost, his years of service in Newfoundland, the Department would not support his request. Support could be something in writing or someone. The appellant was specifically asked to provide in writing the name or names of people who made commitments to him at the time of his hire. The appellant responded in writing that he could not recall whom he had spoken with, but wrote that he had had a telephone conversation with the office of Field Services and Personnel.
[27] Inquiries were made. Mr. Joseph MacKinnon, former Director of Field Services and Personnel, was contacted. He advised that he had not negotiated any special arrangement with the appellant. Mr. MacKinnon believed that no one who had worked in his office would have done so without the knowledge and agreement of the Department of Finance, and such an arrangement would have been appropriately documented.
[28] As already described, eventually the appellant’s efforts to get some satisfactory resolution with the Province ended and he sued.
[29] The trial judge analyzed the evidence and concluded the appellant’s claims failed on the merits and because of the Limitation of Actions Act. He expressed his conclusions in the following paragraphs:
[87] The burden is on the plaintiff to prove, on a balance of probabilities, that he had received a verbal representation amounting to a contractually enforceable condition of employment or, alternatively, that he had been mislead to believe that he would receive full credit for his Newfoundland and Labrador pensionable service upon transfer to Nova Scotia. He has failed to discharge that burden.
[88] Furthermore, the exact amount of the alleged loss was known to him by June (or at the latest July) of 1989. If he had had a sustainable cause of action it would have started to run at that time. Even when one takes into consideration the provisions of section 3 of the Limitation of Actions Act which allows a Court to disallow a limitation defence in certain circumstances, the maximum extension that may be afforded a litigant is only four years. Mr. Savoury did not commence his action until more than 16 years had passed after he first became aware of the shortfall in the buying power of his former pension. Throughout this period he obtained periodic up‑dates on the ever‑increasing amount needed to buy back his pensionable service owing to accruing interest. He also, on numerous occasions, acknowledged his own personal responsibility to cover the deficiency if he ever hoped to retire from the Province of Nova Scotia at the earliest possible date with full pension entitlement. Instead, he pursued a benefit that was neither available to him nor any other Provincial Civil Servant.
[30] With respect to the events of January 2001 constituting a claim in contract or negligent misrepresentation, the trial judge reviewed the evidence and succinctly concluded:
[94] The evidence makes it clear that everything that could be done to resolve the pension issue for Mr. Savoury was done. The failure to resolve the problem in a way that was most favourable to Mr. Savoury is not the basis for a cause of action.
ISSUES:
[31] In his Notice of Appeal, the appellant advances eight complaints of error. They are repeated in his factum as follows:
1. McDougall J. erred in law by concluding that the six‑year limitation period for commencing an action in tort and contract began to run in June or July 1989;
2. McDougall J. erred in law by concluding that the Limitation of Actions Act, R.S.N.S. 1989, c. 258, barred the Appellant's claim for declaratory relief;
3. McDougall J. erred in law by failing to consider or apply the law of negligent misrepresentation by omission;
4. McDougall J. erred in law by failing to find that the Respondent was subject to a positive obligation to advise the Appellant that there could be a shortfall on the transfer of his pension;
5. McDougall J. erred in fact and law in finding that the Appellant was bound by the terms of the Reciprocal Transfer Agreement between Nova Scotia and Newfoundland when he signed Schedule "A" to that agreement;
6. McDougall J. erred in fact by making adverse findings with respect to the Appellant's credibility due to the Appellant's failure to disclose a letter to him from the Newfoundland Department of Finance dated June 17, 1988;
7. McDougall J. erred in fact and law in failing to find that the Respondent breached, or committed anticipatory breach, of a term of the Appellant's employment contract; and
8. McDougall J. erred in law in finding that the Respondent did not make and breach a contractual commitment to the Appellant on or around January 17, 2001, that the Respondent had approved the transfer of all of the Appellant's pensionable service from Newfoundland to Nova Scotia.
[32] In my view, the complaints by the appellant can be conveniently grouped into four categories of putative error by the trial judge: error with respect to the claim of relief for breach of contract; error in his findings of credibility; error with respect to negligent misrepresentation; and lastly, error with respect to his conclusions on the Limitation of Actions Act, including the applicable principles for the appellant’s claim for declaratory relief. While I do not disagree with Justice McDougall’s analysis and conclusions with respect to the limitation issues, I need not consider these grounds in light of my views on the first three categories. I will elaborate.
ANALYSIS
Standard of Review
[33] The parties acknowledge the limits of appellate review. An appeal court can intervene only if it is satisfied the trial judge erred in law or made a palpable and overriding error in findings of fact or mixed law and fact (see Housen v. Nikolaisen, [2002] 2 S.C.R. 235, paras. 25, 26 and 36). The phrase “palpable and overriding error” subsumes findings that are unreasonable or unsupported by the evidence (see H. L. v. Canada (Attorney General), 2005 SCC 25). Deference is owed to findings of credibility, facts found by direct evidence or by inference (see D. Roper Services Ltd. v. Cape Breton Development Corporation, 2005 NSCA 7).
[34] The appellant acknowledges that to be successful on some of his claims of error, he must satisfy us that Justice McDougall’s findings were unreasonable or unsupported by the evidence – in other words, he made palpable error in relation to important findings of fact or of mixed law and fact. With these principles in mind, I turn to the three categories of error I need to consider.
Breach of Contract
[35] The appellant claims in his seventh ground of appeal that the trial judge erred in fact and law in not finding that the respondent breached, or committed anticipatory breach, of a term of the appellant's employment contract. The appellant acknowledged that the claimed error by the trial judge must be palpable and overriding.
[36] With respect, I see no error by the trial judge. The appellant does not identify any error in law. His submissions are that the “... evidence clearly supported Mr. Savoury’s contention that he was told during the interviewing process that he would be able to transfer his pension.” This is nothing more than a request that we review the evidence and come to a different conclusion than the trial judge. That is not our role.
[37] In any event, the finding of the trial judge is fully supported by the evidence. Recall that the appellant’s statement of claim alleged it was a term of the employment contract that Nova Scotia would provide him with pensionable service equivalent to his pensionable service under the Newfoundland plan. The appellant had the burden of proving such a representation was made and that it was a term of his contract of employment. The trial judge found the burden was not met. I see no basis to disagree.
[38] If such a representation had been made, it seems incredible that when the appellant was first informed that to obtain the equivalent pensionable service under the Nova Scotia plan he would be required to pay $42,920.04, he said nothing to anyone about a representation by Joseph MacKinnon or David McEachern, the two individuals he eventually identified as being responsible for making the representation. Indeed, the appellant acknowledged that although he always knew the identity of these individuals, at no time did he ever speak or try to speak with either. He never identified them by name until his formal reply to a demand for particulars in 2006.
[39] Both Messrs. MacKinnon and McEachern testified at trial. Mr. MacKinnon denied making any such alleged representation. His evidence was:
Q. Mr. MacKinnon, you've become aware that Mr. Savoury is alleging in this lawsuit that either you or Dave McEachern made a representation to him somewhere around the time he was hired to the effect that he was told that he could transfer all his pensionable service from Newfoundland to Nova Scotia. What do you say to the suggestion that you made that representation?
A. No, I don't ‑‑ I didn't say that.
Q. And why do you say that?
A. Because I didn't have the authority to say it.
Q. If...
A. That's the responsibility of the Department of Finance.
Q. If ‑‑ okay. And do you specifically recall a conversation with Mr...
A. No.
Q. ...Savoury respecting pension?
A. No, I don't.
Q. Okay. If ‑‑ but you said that you had no authority and the responsibility for pensions was the Department of Finance.
A. Um‑hmm.
Q. So if a pension question came up with a prospective employee, what would you tell them?
A. That we would inquire with the Department of Finance. Percy Fleet was the superintendent of Pensions, and he was the man. My first reaction would be to call Percy to see if this is possible.
Q. Okay. Do you have any recollection of calling Mr. Fleet or anyone at the Department of Finance...
A. No.
Q. ...in relation to Mr. Savoury?
A. No, I don't. No.
[40] Mr. McEachern was also clear. He would not and did not make any such representation. He testified:
Q. Okay. Fair enough. Mr. McEachern, Mr. Savoury alleges in these proceedings that in a telephone conversation some time in December of 1988 you or Mr. Joe MacKinnon made an assurance or representation to him, that is Mr. Savoury, to the effect that Mr. Savoury could transfer all his pensionable service from Newfoundland to Nova Scotia and my question is, of you, what do you say to that?
A. I'm certain that it was not me.
Q. Okay. And why are you certain it's not you?
A. Well, for something ‑‑ for an issue like that, and recognizing it has been over 20 years...
Q. Yeah.
A. ...I'm not an expert on pensions, and I certainly would not have been responding to any employee about a pension issue that's specific to their pension ‑‑ transfer of that pension from one government jurisdiction to another. I would have referred ‑‑ if the question ever even came to me in the first place, in all probability would have referred that question to Pension Division of the Department of Finance. And, secondly, just on just our previous conversation just coming to light as of December 1988, I wasn't with Department of Community Services at the time. I was on secondment with ... from November of 1988 to approximately April of 1989.
[41] The trial judge accepted the evidence of Messrs. MacKinnon and McEachern. He reasoned:
[84] Although obviously not happy with this scenario, the plaintiff said nothing about any alleged breach of some verbal representation made to him that induced him to accept the position offered by the Department of Nova Scotia or who might have said it. Indeed it took the plaintiff nearly 17 years to even suggest the names of two persons who might have possibly given him this false impression. In a Reply to Demand for Particulars filed on August 11, 2006, Mr. Savoury identified Joseph MacKinnon or possibly David McEachern as the individual who allegedly mislead him during the hiring process. Both of these individuals testified at trial. Both denied making any such representations nor agreeing to any special arrangements to confer a benefit that was not normally available to anyone else.
...
[97] Then almost 10 years later in a memorandum to Jane Fitzgerald, the Executive Director of Family and Children's Services he suggests "the fact that my full pensionable service was to be transferred without additional costs was a significant factor in my decision to accept the position in Nova Scotia." It was not until March 20, 2002 in a letter to Barbara Burley did he first say that he "would not have accepted the position with the Province of Nova Scotia if I had known that I would not be credited with 15 years and 7 months [sic] of pensionable service." And, as mentioned previously, he did not offer up the names of anyone who might have led him to believe he would get full credit for pensionable service without any cost to him until he replied to a Demand for Particulars filed on April 11, 2006. Mr. Savoury's explanation for why he was reluctant to name names was, at best, inadequate. I accept the evidence of both Joseph MacKinnon and David McEachern when they testified that they had not promised any special arrangement for Mr. Savoury.
[42] I am not convinced that the trial judge’s use of the phrase “special arrangement” is reflective of any error, let alone a palpable and overriding one. The evidence clearly demonstrated that it would have had to have been a special arrangement to make such a promise of equivalent pensionable service, and both Mr. MacKinnon and Mr. McEachern clearly explained they had no pension transfer expertise.
[43] The trial judge was in the best position to assess the credibility and reliability of the appellant’s viva voce testimony and that of Messrs. MacKinnon and McEachern. I see absolutely no basis to disturb such a determination. It was within his purview to make. It is amply supported by the evidence of the witnesses themselves and by other evidence. For example, the appellant dealt with a number of government representatives over many years after he became aware of the need for an additional cash payment that would provide him with equivalent pensionable service in Nova Scotia. Yet none of them were told by the appellant of any such representation.
[44] There is no need to consider the appellant’s complaint of how the trial judge dealt with anticipatory breach of contract since the allegation of breach or anticipatory breach is relevant only if there was a sustained finding that a representation was made and that it was a term of the contract. The trial judge was not satisfied on either count.
[45] The appellant makes two other claims of error by the trial judge in the realm of contract. These are set out in grounds five and eight. I will deal with ground eight first.
[46] The appellant argues that the trial judge erred in law in failing to find a contractual commitment by the Province to the appellant arising out of the events of January 17, 2001 and subsequent breach of it. I will not repeat the factual background. The complaint is, with respect, entirely without merit. There was no offer, acceptance, nor consideration necessary to create an enforceable contract. At best, the appellant was misinformed by his immediate supervisor about what had happened at the meeting of January 17, 2001. The trial judge thought the appellant should have known that a Deputy Minister could not, in the circumstances, have made any such unilateral decision or promise. Perhaps so, but that is really not relevant since no contractual agreement resulted. On this issue, the trial judge succinctly and accurately said:
[94] The evidence makes it clear that everything that could be done to resolve the pension issue for Mr. Savoury was done. The failure to resolve the problem in a way that was most favourable to Mr. Savoury is not the basis for a cause of action.
[47] I agree.
[48] The appellant claims in his fifth ground of appeal that the trial judge committed palpable and overriding error when he determined that the appellant was bound by the terms of the Reciprocal Transfer Agreement by signing Schedule “A”. I have difficulty understanding this complaint. No one argued at trial that the appellant was somehow not bound by the terms of the Reciprocal Transfer Agreement.
[49] In his factum, the appellant complains that the trial judge placed too much emphasis on the wording of Schedule “A”, and that the appellant was not provided with a copy of the Reciprocal Transfer Agreement until 1993. Therefore, the appellant had no way of knowing that “a significant portion of his pension could be lost when the transfer was initiated unless he was told by the Respondent”. The appellant complains that the trial judge was wrong in saying it was a mistake on the appellant’s part in not reading Schedule “A” and he alone must bear the consequences of that decision.
[50] With respect, for a number of reasons, I am unable to agree that the trial judge erred.
[51] The appellant filled out and signed “Schedule “A” – “Application for Transfer of Funds and Pensionable Service”, reproduced infra —15. This document demonstrates that had the appellant read it he should have been alerted to the fact that the extent of the transfer of pensionable service is not always on par, but is determined by the terms of Clause 5 of the Reciprocal Transfer Agreement. Granted he was not provided with a copy of the Reciprocal Transfer Agreement, but he did not request a copy.
[52] The trial judge’s comments that the appellant alone must bear the consequences of his decision to transfer his pension must be put in context. The trial judge had already found that no representation had in fact been made by anyone from Nova Scotia about the appellant being able to transfer all of his pensionable service without additional cost. As a consequence it was not a term of his employment contract that he would receive full credit for his pensionable service in Newfoundland without cost to him. The trial judge then commented:
[100] It is simply not enough for the plaintiff to state that it was his understanding that he would receive full credit without any cost. By signing the Schedule “A” ‘Application for Transfer of Funds and Pensionable Service’ which contained the provision:
I request that the pensionable service accrued by me under the pension plan be credited to me to the extent provided in Clause 5 of the said Agreement [Emphasis Added] as pensionable service under the pension plan by the Province of Nova Scotia.
without first requesting a copy of the Reciprocal Agreement for review or not asking what this particular provision meant was a mistake on his part. Having said that, Mr. Savoury was not being singled out for punishment nor was he being treated any different than anyone else transferring pensionable service pursuant to the Nova Scotia Public Service Superannuation Act. A deficiency, if any, is the responsibility of the transferring employee. Save some special arrangement which, in this case, there was not, the employee has the option to buy back his or her pensionable service either by lump sum payment or by regular instalments together with an additional amount to cover accruing interest. There is also the option of doing nothing which is what the plaintiff, in this case, elected to do. He alone must bear the consequences of that decision.
[53] I see no error by the trial judge in these comments in light of his earlier findings that no representation had been made to the appellant. Accordingly, I would not give effect to any of these grounds of appeal.
Error in Credibility Findings
[54] In his sixth ground of appeal, the appellant says that the trial judge committed palpable and overriding error in finding that the appellant was not forthright about the content and existence of the letter of June 17, 1988. He also argues that the trial judge was wrong in mischaracterizing and misapprehending the import of the information in that letter.
[55] It is, of course, trite law that findings of credibility are particularly within the purview of trial judges. They have the advantage of seeing the witnesses and observing their demeanour as they deal with sometimes pointed cross-examination. On this issue, Cromwell J.A., as he then was, in MacNeil v. Chisholm, 2000 NSCA 31, summarized the legal principles:
[8] Finding facts and drawing evidentiary conclusions from them are roles of the trial judge, not the Court of Appeal: see Toneguzzo‑Norvell v. Burnaby Hospital, [1994] 1 S.C.R. 114 at 121. An appellant cannot challenge a trial judge's findings of fact simply because the appellant does not agree with them: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paragraphs 88 and 90. Findings of credibility are "... eminently a matter for the trier of fact.": see A.W. Mewett, Witnesses (1991) at page 11 ‑ 3.
[9] The judge, as the trier of fact, must sort through the whole of the evidence and decide which to accept and which to reject so as to piece together the more plausible view of the facts. Many considerations properly influence this decision, including the nature of any unreliability found in a witness's testimony, its relationship to the significant parts of the evidence, the likely explanation for the apparent unreliability and so forth. The trial judge may find that some apparent errors of a witness have little or no adverse impact on that witness's credibility. Equally, the judge may conclude that other apparent errors so completely erode the judge's confidence in the witness's evidence that it is given no weight.
[10] Making these judgments is the job of the trial judge and the Court of Appeal generally should not substitute its own judgment on these matters. An appellant alleging an error of fact must show that the trial judge's finding is clearly wrong. Not every error in findings of fact permits appellate intervention. As Lamer, C.J.C. said in Delgamuukw, supra at para 88:
... it is important to understand that even when a trial judge has erred in making a finding of fact, appellate intervention does not proceed automatically. The error must be sufficiently serious that it was 'overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue'. (emphasis added)
Where credibility is in issue, only errors that fundamentally shake the appeal court's confidence in the trial judge's findings of fact justify appellate intervention.
[56] The complained of error is found in the following paragraphs of the trial judge’s decision:
[98] Perhaps the greatest irony in all this is that the one person who possessed the financial information that could have been used to calculate or at least estimate what Mr. Savoury's Newfoundland accumulated pension credits would buy under the Nova Scotia Pension Plan was Mr. Savoury himself. And, for reasons known only to him, he did not share this information with anyone, even when he was legally obligated to disclose under our rules of procedure. I do not believe this was simply an oversight on his part. Both Gordon Sturdy and Diane Woodley testified that if they had been provided with this information that had been sent to Mr. Savoury by Mr. David Lidstone, Pension Benefit Specialist in the Department of Finance of the Government of Newfoundland and Labrador in a letter dated June 16 [sic], 1988 – prior to Mr. Savoury's 'Application for Employment' to the Nova Scotia Civil Service Commission dated August 8, 1988 – they might have been able to make some calculations that could have influenced Mr. Savoury's decision to either transfer his Newfoundland pension credits to the Nova Scotia Pension Plan or to leave them where they were.
[99] This lack of forthrightness on the part of the plaintiff tends to undermine his credibility and diminishes the validity of his claim. This, coupled with the fact that he has nothing in writing to confirm what might have been said to him that might somehow be interpreted as an inducement to either accept the position offered to him by the Nova Scotia Civil Service Commission (upon the recommendation of the Department of Community Services) or, upon acceptance, to transfer his accumulated pension credits from Newfoundland to Nova Scotia such that he would receive full credit without any cost irrespective of any deficiency that might exist leaves the Court unconvinced of its merits.
[My emphasis]
[57] Counsel for the appellant says that the appellant testified that he had forgotten about the exchange of correspondence with Mr. Lidstone, and had not kept copies. I am unable to agree. The appellant at no time in cross-examination or in redirect said he had forgotten about the letter of June 17, 1988 or that he did not have a copy of it. He did testify that he did not have a copy of his letter dated April 28,1988 sent to Mr. Lidstone. Nothing was said about the June 17, 1988 letter.
[58] The appellant was cross-examined extensively on the letter of June 17, 1988 and the fact that the letter did appear to contain the information that would permit at least a rough calculation of what would happen on transfer. This was a significant issue at trial since the appellant argued strenuously at trial that the respondent should have told him there would be a deficiency in the amount of pensionable service. The respondent did not have any of the information that would be needed to try to calculate the consequences of transfer. As it turned out, the appellant did.
[59] Included in the cross-examination of the appellant were the answers the appellant gave at discovery when he was asked if he had any conversation with anyone in Newfoundland about pension or transfer of pension. He said he had had none. The appellant provided an explanation for the apparent inconsistency. It was for the trial judge to weigh that explanation in light of all of the evidence. The finding that the failure to disclose the letter of June 17, 1988 was not an oversight is a finding of fact. It was supported by the evidence. It is not for this court to re-try the case. I would therefore not give effect to this ground of appeal.
Negligent Misrepresentation
[60] The appellant’s complaints under this category are found in grounds three and four of his Notice of Appeal. He claims legal error by the trial judge’s failure to consider and apply the law of negligent misrepresentation by omission, and in his failure to find that the respondent had a positive obligation to advise the appellant there could be a shortfall on the transfer of his pension.
[61] The appellant is correct in saying that the trial judge did not refer to any case law or even the applicable legal principles when he considered and then dismissed the claim for negligent misrepresentation. It would have been better had he done so, but in these circumstances I do not view the omission as fatal.
[62] The parties submitted pre-trial briefs. Extensive oral argument was heard by the trial judge. These submissions extensively canvassed the leading authorities. The appellant relied heavily on Queen v. Cognos Inc., [1993] 1 S.C.R. 87; Spinks v. Canada (C.A.), [1996] 2 F.C. 563; and Allison v. Noranda Inc., 2001 NBCA 67. These authorities were discussed at length before the trial judge. He could not have overlooked them. The problem for the appellant is that the legal principles set out in these cases do not assist him in light of the evidence and facts found by the trial judge. I will explain.
[63] In 1963, the House of Lords handed down the decision of Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 which broadened the scope of liability for statements that are not accurate. The result of the five judgments is nicely summarized in the headnote to the case in the All England Law Reports:
If, in the ordinary course of business or professional affairs, a person seeks information or advice from another, who is not under contractual or fiduciary obligation to give the information or advice, in circumstances in which a reasonable man so asked would know that he was being trusted, or that his skill or judgment was being relied on, and the person asked chooses to give the information or advice without clearly so qualifying his answer as to show that he does not accept responsibility, then the person replying accepts a legal duty to exercise such care as the circumstances require in making his reply; and for a failure to exercise that care an action for negligence will lie if damage results.
[64] The Supreme Court of Canada has approved the principles in Hedley Byrne on many occasions, most notably in Queen v. Cognos, supra. In that case, Justice Iacobucci found that the authorities suggested five general requirements for a successful negligent representation claim. He wrote at p. 110:
The required elements for a successful Hedley Byrne claim have been stated in many authorities, sometimes in varying forms. The decisions of this Court cited above suggest five general requirements: (1) there must be a duty of care based on a "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. In the case at bar, the trial judge found that all elements were present and allowed the appellant's claim.
[65] In Cognos, the facts were that the plaintiff, Mr. Queen, held a secure job as chartered accountant in Calgary. He was looking for more challenging opportunities. Cognos Inc. was an Ottawa‑based software company, seeking an accountant to provide expertise regarding accounting software that it intended to develop. Mr. Queen applied for the position. Mr. Johnston, the Manager of Product Development, conducted the interviews. He was aware that the corporate management team had not yet approved funding for the position, but did not convey this information to Mr. Queen or to any of the candidates. During the interview, Mr. Queen was informed that the project was of significant importance to Cognos, that it would take approximately two years to develop and that the successful candidate would hold a relatively senior position on the project.
[66] Mr. Queen was offered and accepted the position. He moved his family from Calgary to Ottawa and began his position at Cognos. He was still unaware that the funding for the project had not yet been approved. When the management team finally did meet to discuss the project terms, it approved a much lower level of funding than Mr. Queen was promised. Within five months of commencing his new job, Mr. Queen was informed that the project would not proceed and that he would be laid off. He sued Cognos for negligently misrepresenting the position and related job security by making statements that would cause a reasonable person who had relied on them to suffer damage. The trial judge found that the defendant had breached its duty of care to ensure that representations made were not inaccurate or misleading. Highly relevant information about the true nature of the employment opportunity was not disclosed.
[67] The problem for the appellant here is that the trial judge found that no one had made any representations to the appellant about his pension, let alone any that were untrue, inaccurate or misleading. The appellant asserted that either Mr. MacKinnon or Mr. McEachern made representations to him about the ability to transfer his pension on par. They denied doing so. The trial judge accepted their evidence.
[68] In Spinks, supra, the Federal Court of Appeal overturned a trial decision dismissing Mr. Spinks' action against his employer. Mr. Spinks had worked for the Australian Federal Government for 20 years before taking a job with Atomic Energy of Canada Ltd. (AECL). On his first day of work, he attended a “sign‑on interview” held to inform new employees of job‑related matters, including the AECL pension plan. He was given a booklet and a form on which he could elect to count prior employment service elsewhere as pensionable service under the Canadian Federal Government plan. There was also a box the employee could choose to get more information about the cost of electing to have prior employment service count as pensionable service under the Canadian Federal Government plan. Neither the booklet nor the form stated that employment abroad could count as pensionable employment. As a result, the appellant did not complete the form and did not request an assessment of his prior employment.
[69] Fourteen years later, the appellant was on a coffee break with a fellow employee, who had come from England some years earlier to work with AECL. This employee informed Mr. Spinks that he had purchased back some of his years of service in England. Mr. Spinks was shocked by this news. He immediately inquired of AECL how much it would cost him at present to buy back his Australian service and was told it would cost over $200,000. As this was prohibitively expensive, Mr. Spinks took no further action. Three years later, he approached AECL, claiming that AECL had misled him about his pension options when he was first hired. AECL informed him that he could buy back his pension at prior salary rates only if he could show that he had been given “erroneous advice” which did not include the absence of advice.
[70] The Federal legislation gave to the Minister the power to provide relief, by way of permission, to later elect to pay for pensionable service on account of erroneous advice. There was no issue that department officials were specifically charged with the duty to advise new employees about pension rights. They were trained to do so. Yet the trial judge found no erroneous advice because there had been no positive misstatement by those officials who had failed to inform Mr. Spinks that his employment in Australia could qualify as employment service eligible for pensionable service. Linden J.A., for the Court, wrote:
[14] The primary question raised by these provisions concerns the meaning of the phrase "erroneous advice" and whether the appellant was given erroneous advice in the circumstances of his sign‑on. The Trial Judge agreed with the Minister and held that "erroneous advice" contemplates a positive misstatement, and that no such misstatement was made to the appellant. He stated:
. . . Insufficient advice is not erroneous advice. While there may be some circumstances where erroneous advice would include insufficient advice, here the defendant provided information to the plaintiff to put him on notice that he should make enquiries about his previous service with the Australian government. It is insufficient, despite the arguments of counsel for the plaintiff, to have simply left an impression with the plaintiff about his ability to elect credits for his Australian service, in order for there to be erroneous advice. There must be a positive misstatement or an inference of a positive misstatement. Mr. Spinks made no such allegation in his testimony. I am unable to draw any inferences of a positive misstatement by an AECL employee from the facts of the meeting described by Mr. Spinks.
With respect, this was an error of law. The phrase "erroneous advice" should not be so narrowly construed, especially in remedial legislation such as this. It seems to me that where one party is advising another, the failure to divulge material information may be just as misleading as a positive misstatement. Missing information can be just as harmful as mistaken information. Both types of advice are equally erroneous. This is especially the case where, as here, the information in question is of a specialized nature, which is easily available to the advisor but not easily obtainable by the party being advised. In such a context, the duty of an advisor is to advise competently, accurately, and fully.
[71] In Allison v. Noranda, supra, the plaintiff was terminated. The employer presented two options about how he could get paid his severance. One was by lump sum; the other by installment. These options impacted on the pension amounts he could start receiving at age 55. The employer knew that if he selected a lump sum it would reduce his pension payments by more than 60%. This was not disclosed in the letter sent to Mr. Allison, nor in any other communication. The employer was surprised when Mr. Allison elected the lump sum option. When he applied for his pension benefits, he found out the difference. He sued.
[72] The trial judge found the letter not inaccurate and dismissed the action. On appeal, the court agreed that the letter setting out the options was accurate in what it said, but was misleading by what it did not say. Robertson J.A., writing for the court, concluded:
[27] Surely, an employer is under an obligation to make sufficient disclosure to enable an employee to make an informed decision in cases where the employer asks an employee to make an election with respect to separation pay options that impact significantly on pension benefits. I say this because pension information is of a specialized nature and, in the present case, within the control of Noranda as administrator of the pension scheme: see Spinks v. Canada (C.A.), [1996] 2 F.C. 563 (C.A.). As well, the pension information was not of a speculative nature, nor subject to differing or divergent interpretations. Finally, Noranda must be deemed to have known that the information would be of overriding significance when Mr. Allison was making his election in the context of settling his dismissal without cause claim against Noranda. Indeed, Noranda's lawyer, Mr. Hughes, considered it appropriate to offer Mr. Allison separation pay elections due to his age and length of service because of the impact of the election on his pension. Indeed, the March 9, 1990 memorandum from Noranda's legal counsel to its mine manager expressly acknowledges this fact.
[73] The problem with the appellant’s reliance on Spinks and Allison is that the trial judge in this case found that no one from the respondent gave any advice to the appellant. That was not the situation in Spinks where the government officials had the specific duty to give pension advice to advise new employees about pension options; and that was not the situation in Allison where the employer presented a departing employee with options without disclosing important information it alone had. Here, there was no evidence that anyone from the respondent had any information, or even should have had information, to give to the appellant about the transfer of his pensionable service.
[74] For similar reasons, I am unable to agree that the trial judge erred in failing to impose a positive obligation on the respondent to disclose that a “deficiency” might be created by the transfer of his pensionable service from Newfoundland to Nova Scotia. The appellant relies on the same cases to argue for the imposition of this obligation, and consequent breach of it. With respect, those cases do not support the imposition of such an obligation in these circumstances, nor do they do so by analogy.
[75] I have already made reference to the evidence of Messrs. MacKinnon and McEachern. They testified that if the appellant had raised the issue of pension, they would have referred him to the Department of Finance. This evidence was accepted by the trial judge. Also accepted by the trial judge was the evidence of the officials from the Department of Finance that had the appellant contacted them with the information set out in the letter of June 17, 1988 (Ex. No. 3), they could have alerted the appellant that there would be a deficiency on transfer to the better Nova Scotia pension plan.
[76] The appellant did not seek any advice from the respondent about what might happen on transfer. It is useful to recall that the appellant started work with the respondent on January 16, 1989. One week later, he obtained “Schedule “A” – “Application for Transfer of Funds and Pensionable Service”. It is a short document. He said he did not read it. That document requested a transfer of “the sum of money which is transferable pursuant to Clause 4 of said Agreement”. It concluded : “I request that the pensionable service accrued by me under that pension plan be credited to me to the extent provided in Clause 5 of the said Agreement as pensionable service under the pension plan by the Province of Nova Scotia”.
[77] The “Agreement” referred to in Schedule “A” is of course the Reciprocal Agreement between the Provinces of Newfoundland and Nova Scotia. It was dated September 15, 1986, a little more than two years prior to the appellant accepting employment in Nova Scotia. The uncontested evidence was that transfers were new. In the two years there had been only a couple of fund and pension transfers to Nova Scotia. There could have been transfers that were in excess or in deficiency. There had been none with significant reduction of pensionable service prior to what happened on the appellant’s transfer. In these circumstances, I fail to see any error by the trial judge in not finding that the respondent should have warned the appellant that a deficiency might be created on transfer. I would not give effect to either of these grounds of appeal.
[78] Before leaving this aspect of the appellant’s argument, I want to address the notion advanced repeatedly by the appellant that by signing the application for transfer of funds and pensionable service the appellant was unaware that a significant portion of his pension “could be lost by the transfer”. Leaving aside the other requirements to successfully establish the tort of negligent misrepresentation, it is not apparent to me that the appellant demonstrated detrimental reliance on any representation, active or by omission, by the respondent.
[79] Although not specifically argued at trial, and therefore not dealt with by the trial judge, it is not apparent to me that the appellant lost anything by the transfer of the value of his Newfoundland pension to Nova Scotia. He had the option of leaving his pension funds in the Newfoundland plan and when eventually eligible, receiving those funds, less deductions due to concurrent receipt of CPP benefits. He also had the option of withdrawing the funds, losing the employer’s contributions and rolling the payout into an RRSP. There was no expert or other evidence that demonstrated he actually suffered damage by transferring the value of his Newfoundland pension to the Nova Scotia plan. Perhaps he did, but quite frankly I see no direct evidence of this and very little that would permit such an inference to be drawn.
SUMMARY AND CONCLUSION
[80] The appellant had the burden of establishing the necessary elements of the causes of action he alleged against the respondent. The trial judge was not satisfied that a verbal representation had been made amounting to a term of the appellant’s contract of employment that he would be entitled to transfer his pensionable service under the Newfoundland pension plan to the Nova Scotia plan without cost; nor was he satisfied that the appellant was the victim of negligent misrepresentation which caused him to request the transfer of the value of his Newfoundland pension.
[81] I am not persuaded that the trial judge made any legal error or any palpable and overriding error of fact or of mixed law and fact in coming to these conclusions. Accordingly, I would dismiss the appeal with costs to the respondent.
[82] The respondent was awarded costs by the trial judge in the amount of $45,000, inclusive of disbursements. On appeal, both parties sought an award of 40% of trial costs. This would amount to $18,000. No information was supplied on the actual fees and disbursements incurred by either party in the prosecution and defence of this appeal. Absent that information, in my opinion, an award of $18,000 would likely overcompensate the successful party. I would award the respondent costs in the amount of $10,000, inclusive of disbursements, representing a substantial contribution to its costs.
Beveridge, J.A.
Concurred in:
Fichaud, J.A.
Hamilton, J.A.