IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Trim v. Beaudet, 2003 NSSC 216
Date: 20031112 Docket: S.H. No. 178515
Registry: Halifax
Between:
Faye Trim
-and-
Nathan Beaudet and City Motors Limited c.o.b. City Mazda
Decision
Judge: The Honourable Justice Robert W. Wright
Heard: October 24 and November 6, 2003in Halifax, Nova Scotia
Written Decision: November 12, 2003
Counsel: Plaintiff’s Counsel - Jason Gavras
Defendant’s Counsel - Peter Rumscheidt
[1] This is an action brought by the plaintiff following the collapse of her intended car purchase from the defendant dealership on or about April 1, 2002. In her Statement of Claim dated April 11, 2002 (as amended) the plaintiff claimed the return of her $500 deposit, general damages in the amount of $1,000, aggravated damages and punitive damages. The plaintiff further seeks an award of solicitor-client costs.
[2] I begin with a review of the evidence. The plaintiff is a psychologist employed by the Halifax Regional School Board. She described in her testimony how she needed a replacement vehicle for work purposes at a time when she had recently emerged from a personal bankruptcy. She was attracted by an advertisement run by the defendant offering financing under what was called a Credit Re-establishment Program. This led her to first visit the dealership in late March of 2002 to look around the defendant’s used car lot.
[3] On a second visit to the dealership on or about March 30, 2002, the plaintiff met with Dan MacNeil, one of the defendant’s sales representatives. She explained her past financial difficulties and her tight budget whereby she was seeking to acquire a replacement vehicle that carried a monthly payment of no more than $250. The plaintiff was particularly interested in acquiring a 1998 Chevrolet Cavalier that was priced at $11,250. In her negotiations with Mr. MacNeil, it became apparent that in order to acquire that vehicle, she would have to carry a monthly payment of approximately $350 over a span of 48 months.
[4] In the course of their discussions, Mr. MacNeil filled out the dealership’s standard form Bill of Sale which was used as a worksheet. On that worksheet, the price of the car was written in, as well as a deposit which had to be made in the amount of $500. Also appearing on the Bill of Sale worksheet was the handwritten notation that “CUSTOMER AGREES TO LEASE FOR 48 MTS AT $345 MT TAXES INC.” This was followed by a handwritten notation of the applicable warranties. None of these notations were initialed by either party. It was the evidence of the plaintiff that the reference to the lease was not written in at the time she signed the worksheet in the presence of Mr. MacNeil.
[5] As the plaintiff was well aware, Mr. MacNeil did not have the authority to finalize the transaction. He was required to get the sales manager’s acceptance on behalf of the vendor and to refer the proposed transaction to the business manager, Nathan Beaudet. It was Mr. Beaudet’s responsibility, in the meeting which followed with Mr. MacNeil and the plaintiff, to transpose the information from the worksheet onto another blank copy of the standard form Bill of Sale by computer. It was also his responsibility to explain and offer to the plaintiff the availability of after market products, namely, extended warranties and protection plans (rust, paint and fabric). The only one of these products that the plaintiff was remotely interested in was the rust protection plan which she wanted to think about. Mr. Beaudet thereupon entered the price of the rust protection plan on the Bill of Sale (in the amount of $399) on the basis that it could be removed from the contract if she decided against it. If she decided in favour of it, it would increase the monthly instalment to an amount of $362.94.
[6] After typing in the amount pertaining to the price of the car, the $500 deposit, the cost of the rust protection plan and the resulting monthly instalments financed by the defendant, Mr. Beaudet added further information by handwritten entries under the column designated “Schedule A Optional Equip.” These added notations made reference to the first payment of $362.94, a security deposit of $1,000 and the license and registration fees. The plaintiff did not recall any discussion about these items, which were followed by a listing of the applicable warranties. What was not transposed to this Bill of Sale, however, was any reference to the transaction being in the nature of a lease of the vehicle rather than a purchase.
[7] In their meeting, Mr. Beaudet also assisted the plaintiff in completing her application for credit for the financing of the vehicle. As he later testified, he also completed the defendant’s standard form on credit history and an internal lease worksheet which produced a monthly payment amount of $350.21.
[8] Once the Bill of Sale was completed as above described, the plaintiff was asked to sign it which she did. She also initialed, as requested, a box on the form acknowledging that the partial payment of $500 was non-refundable. By this time, she had already paid her deposit of $500 and in her mind, thereupon had sealed the deal. It is to be noted that the block at the bottom of the form reading “VENDOR’S ACCEPTANCE - this offer to purchase is not binding on the Vendor unless signed by an authorized official of the Vendor” also bore a signature by someone designated as “SALES MANAGER”.
[9] The plaintiff was given a copy of the signed Bill of Sale to take with her. She was not given, however, a copy of the first Bill of Sale used as a worksheet nor was she given a copy of the defendant’s internal lease worksheet. She thereupon made an appointment to pick up the vehicle on the following Monday, April 1, 2002 and left the dealership with the firm understanding that she had a binding agreement to purchase the car at a price of $11,250 which was to be financed by the defendant in 48 instalments of $362.94 each (subject to the necessary reduction if she decided to decline the rust protection plan).
[10] The plaintiff went on to testify that on Monday morning, April 1st, she received a call from Mr. Beaudet who advised her that his boss had reviewed the transaction and required certain changes to the deal, namely, monthly payments of $385 spread over 42 months. She testified that this change was not presented to her as a choice but rather a change that would be necessary in order for her to get the car. She testified that she was very upset about this call because she had made it clear to the dealership that a monthly payment of $350 was all that she could afford. She did not demand a refund of her deposit at that point but did tell Mr. Beaudet that she could not live with those changed terms.
[11] Upset over this turn of events as she was, the plaintiff decided to talk to a loans officer at the Toronto-Dominion Bank who she knew. That person referred her to another car dealership operated by Mr. Dale Chaisson. The plaintiff was in urgent need of a replacement vehicle and decided to visit Mr. Chaisson’s place of business immediately. It was there that she was told that the transaction with the defendant dealership was very likely in the nature of a lease. She said this came as a shock to her and so she decided to call Mr. Beaudet to make that inquiry. He confirmed that indeed it was to be a lease transaction which caused further upset to the plaintiff. She thereupon decided that she did not want to deal with the defendant dealership any further and proceeded to buy a similar vehicle from Mr. Chaisson on what she considered to be better terms. She did this by way of a Conditional Sales Contract.
[12] When she returned home from buying the car, there was a phone message left for her by Mr. Beaudet. The tape of that message was entered in evidence, the transcription of which reads “.....payment that you were expecting I had to go back and ah fight with him again and I did get him to see things ah our way so ah so everything should be ah should be good for the payment of three fifty... talk to you soon...bye bye.”
[13] The plaintiff thereupon returned Mr. Beaudet’s call and informed him that she no longer wanted to buy the car even on the original payment terms, having bought another, and wanted her $500 deposit back. Mr. Beaudet replied that he did not think that the deposit was refundable but invited her to come in to discuss it. The plaintiff thereupon paid a further visit to the defendant dealership and in a discussion with Mr. Beaudet and another managerial person, Kathy Scarff, was refused the return of her deposit. The plaintiff found this position very hard to take, especially where the dealership knew of her financial difficulties, which led her to retain legal counsel the following day.
[14] The plaintiff was adamant in her evidence that she was not at any time told by either Mr. MacNeil or Mr. Beaudet that the deal was subject to financing approval, or that the transaction was in the nature of a lease, or that it carried a residual payment obligation at the expiry of the lease in the amount of $1,000, or that there was a further contractual document to be signed in order for her to take delivery of the car, namely, a Vehicle Lease Agreement.
[15] After the close of the plaintiff’s case, consisting of her evidence alone, the defence opened by calling to the stand Mr. Stephen Scarff who, together with his wife, is co-owner of the defendant dealership. Mr. Scarff had no personal involvement in the subject transaction but explained in detail the nature of the Credit Re-establishment Program which he had introduced some years earlier, the documents used in such transactions, and the personnel at the dealership and their respective responsibilities and scopes of authority. It is not necessary for purposes of this decision to review the Credit Re-establishment Program in detail; suffice it to say that under the applicable credit facility with the bank, a person acquiring a car under this program can only do so through a lease arrangement. In effect, the dealer acts as a co-signer with the customer under its credit facility with the bank and, of course, retains title to the vehicle as lessor.
[16] When a customer seeks to acquire a car under the Credit Re-establishment Program, the customer first meets in the ordinary course with a sales representative (here, Mr. Dan MacNeil). The sales representative has no authority to bind the dealership to a transaction but rather presents a proposed transaction to a sales manager to accept or modify. The customer and the sales representative then meet with the business manager who both explains the after market options available and takes the necessary credit information for verification. At that point, the transaction is considered finalized subject to credit approval which must be made by the general sales manager (here, Mr. Keith MacNeil).
[17] Mr. Scarff went on to explain the documentation used throughout the process. It begins with a standard form Bill of Sale which is used as a worksheet as between the customer and salesperson. This worksheet is presented to the sales manager on duty and is also reviewed, in the presence of the customer, with the business manager. It is the business manager who transposes the information from the worksheet onto another copy of the standard form Bill of Sale which ultimately, together with the credit information and internal lease worksheet, goes before the general sales manager for final approval. The only document provided to the customer up to this point is a signed copy of the Bill of Sale.
[18] Once the credit application is approved, the customer is then required to return to the dealership at which time the customer is required to sign a new document, namely, a Vehicle Lease Agreement, before delivery of the car can be taken. The defendant’s standard form Vehicle Lease Agreement contains a section where the lease end purchase option price is to be inserted, i.e., the residual value at the expiration of the lease for which the vehicle can be purchased from the dealership. It also contains a further section where the terms of the excess kilometers charge is to be inserted. A customer cannot take delivery of the vehicle before signing the Vehicle Lease Agreement which the dealership requires under its financing arrangement with the bank.
[19] The first time that the plaintiff’s transaction came to the attention of Mr. Scarff was after the receipt of a letter from her legal counsel dated April 2, 2002. This letter set out the pertinent facts from the plaintiff’s point of view, including the assertion that the plaintiff thought she was entering into a purchase agreement but was later told by Mr. Beaudet that she had entered into a lease with a buy out at the end of the term. It also made formal demand for the return of the $500 deposit plus legal fees of $150.
[20] Mr. Scarff’s response, after speaking with Mr. MacNeil, and having assumed that everything on the Bill of Sale signed by the plaintiff was correctly completed and would stand up if challenged, was to write a blunt letter of reply to Mr. Gavras describing his demand letter as “foolishness” and “very bush”. That reply precipitated the commencement of this action about a week later.
[21] Mr. Scarff testified that it was not until the course of oral discovery examinations that he learned that the Bill of Sale document dated March 30, 2002, upon which the defendant relied in its defence, nowhere contained any reference to its being a lease nor any reference to there being a lease end purchase option price to be paid if the customer ultimately wished to purchase the vehicle, nor any reference to the transaction being subject to credit approval. Rather, the standard form Bill of Sale document speaks in terms of a vendor and a purchaser of a vehicle priced at $11,250, to be financed by the defendant in 48 instalments of $362.94 each, and that in the event of default, the entire purchase price was to become due and owing, all subject to the provisions of the Conditional Sales Act.
[22] Mr. Scarff went on to testify that he thereupon realized that there had been an oversight on their part on disclosure; that a mistake had been made in the preparation of the Bill of Sale document by the omissions aforesaid, and that the defendant accordingly was not going to win the case. He therefore caused to be paid into court on June 24, 2003 the sum of $500 representing the return of the deposit followed by a further sum of $125 on September 10, 2003 representing the filing and service costs of the action. That offer of $625 all inclusive, and paid into court in satisfaction of the whole of the plaintiff’s claim, was not acceptable to the plaintiff who continues to seek an award of damages as well as solicitor-client costs.
[23] In completing my recitation of the essential facts, I now turn briefly to the evidence given on behalf of the defendants by Mr. Keith MacNeil and Mr. Nathan Beaudet.
[24] Mr. MacNeil was general manager of the dealership in April of 2002 and it was his responsibility to decide whether or not a customer qualified for credit. He had no personal dealings with the plaintiff in this transaction directly. Rather, Mr. Beaudet presented the terms of the deal to him for approval which included the plaintiff’s credit application and credit history documentation. Mr. MacNeil testified that while he was prepared to approve the terms presented, he decided that the plaintiff could afford a higher monthly car payment with the income she was earning. He therefore instructed Mr. Beaudet to contact the plaintiff to ask her to agree to a higher monthly payment of $385 over a shorter term of 42 months. He testified that he did not stipulate this as a requirement for approval but rather that the proposed changed terms would be of benefit to both sides of the transaction. When Mr. Beaudet eventually reported back to him that the plaintiff was not comfortable with the changed payment terms, Mr. MacNeil directed Mr. Beaudet to call her back to affirm approval of the original terms of payment.
[25] The next Mr. MacNeil heard was that the plaintiff had bought another vehicle elsewhere and wanted the return of her deposit. He checked the documentation to see that the plaintiff had initialed on the Bill of Sale an acknowledgment that the deposit was non-refundable. Seeing that she had, he considered that the plaintiff was not entitled to a refund of her deposit and he so informed Mr. Gavras by telephone in the initial response to his letter.
[26] Mr. Beaudet was the final witness called by the defence. He described his role and responsibilities as business manager in a manner consistent with the evidence of Mr. Scarff. It was Mr. Beaudet who prepared the Bill of Sale form for the signature of the plaintiff after inputting by computer the information taken from the worksheet copy. Although the Bill of Sale omits any reference to its being intended as a lease, or to there being a lease end purchase option price involved, or that it is subject to financing approval, it was Mr. Beaudet’s evidence that all of this would have been discussed with the purchaser where it is always his practice to go through all the items with every client. He went on to testify that he recalls from personal recollection that he informed the plaintiff that the deal was then still subject to financing approval by his boss (Keith MacNeil).
[27] Mr. Beaudet apparently presented the deal to Mr. MacNeil on Monday, April 1st. He testified that Mr. MacNeil thought that the deal looked good but that he preferred a higher monthly payment over a shorter term. Mr. Beaudet was thereupon asked to call the plaintiff to seek her agreement to this change in terms. Mr. Beaudet testified that the changed terms were not to be considered mandatory, but preferable.
[28] When Mr. Beaudet relayed this information to the plaintiff by telephone on Monday morning, he testified that her response to him was one of protest and that the higher payment terms were not affordable. Mr. Beaudet then informed the plaintiff that he would have to go back to his boss with that information which he did. He thereupon received approval from Mr. MacNeil to revert to the original payment terms. He then set out to so inform the plaintiff but only got her telephone answering machine in reply. He accordingly left a message which he acknowledged was that as quoted earlier in this decision at para. 12.
[29] Mr. Beaudet’s expectation was that the plaintiff would call back to confirm the deal. Instead, he was ultimately informed that the plaintiff had purchased a car elsewhere and wanted her deposit back from the defendant. As earlier recited, when she later came into the dealership to pursue that, her request was refused on the instructions of Keith MacNeil.
[30] In his submissions to the court, plaintiff’s counsel raises the issue, inter alia, of whether the plaintiff entered into a binding contract at all in signing the deficient Bill of Sale as she did, since there was a further unseen lease agreement with different terms that she was required to sign before she could take delivery of the car. This goes to the heart of the matter, in my view, simply because if no valid and binding agreement was ever formed in law, the defendant’s refusal to refund the deposit when requested to do so would be completely indefensible.
[31] In addressing this issue, I first turn to making the necessary findings of credibility. The plaintiff, both on direct and cross-examination, gave her testimony in a straightforward and consistent manner. I accept her evidence as credible and reliable that she believed that she had entered into an agreement to purchase the vehicle at a price of $11,250 which was to be financed by the defendant, payable in 48 instalments of $362.94 each (subject to adjustment if the rust protection plan was declined). In the same vein, I accept her evidence that she was not properly informed that the dealership intended the transaction to be in the nature of a lease with a residual payment obligation of $1,000 and that a further document, namely, the dealership’s standard form Vehicle Lease Agreement, was required to be signed before she could take delivery of the car. Her belief that this was a purchase transaction, as opposed to a lease transaction, is understandable, and indeed consistent with, the only document that she was given by the defendants during the negotiations, namely, the Bill of Sale dated March 30, 2002 earlier described.
[32] The plaintiff dealt directly with only two persons at the defendant dealership during the course of the negotiations. The first was Dan MacNeil, the sales representative, who was not called as a witness at trial. The second was Nathan Beaudet who testified that his practice as business manager is to definitely discuss with the customer the lease nature of the transaction and the residual payment obligation incidental thereto. His discovery evidence put to him in cross-examination, however, which he acknowledged , was that he “believes” that he told the plaintiff of the lease end purchase option price because that is his practice; but that specifically in respect of the plaintiff, he was not sure if he did or not. That is not surprising, of course, where all of the dealership’s customers proposing to lease or buy a car were then channeled through him as business manager. It would obviously strain the powers of human memory to remember what was specifically said to any one particular customer several months after the fact. I find that Mr. Beaudet’s evidence of his discussions with the plaintiff is largely a reconstruction based on his usual practice.
[33] Overall, wherever a discrepancy arises between the evidence of the plaintiff and Mr. Beaudet, I accept the evidence of the plaintiff as being more reliable. This extends, incidentally, not only to the conflicting evidence of their discussions at the dealership on March 30, 2002 but to their telephone discussion on April 1, 2002 when the changed terms of payment were first presented. Considering that Mr. Beaudet’s followup telephone message spoke in terms of having to fight with his manager again to get him to see things the original way, I am satisfied that the changed terms of payment were presented as a requirement. The words used are not consistent with simply an option having been presented to the plaintiff.
[34] There is no doubt, however, that the dealership intended this to be a lease transaction, rather than a purchase transaction, under its Credit Re-establishment Program. That being the case, it was a poor business practice, in my view, to ask a customer to bind herself to a lease transaction by signing a Bill of Sale, i.e., a purchase and sale agreement, however adapted, with the expectation that the customer would then be asked to sign a further and yet unseen contract at the time of delivery of the car, namely, a standard form Vehicle Lease Agreement. It is little wonder that the confusion over the nature of the transaction arose as it did. I observe in passing that Mr. Scarff testified that the dealership has since corrected this business practice and rightly so.
[35] Because of the confusion that arose over the nature and terms of the transaction, I find that there was no consensus ad idem reached between the parties during their negotiations. For purposes of this decision, it is not necessary for me to engage in a lengthy dissertation on the law of mistake in contract. Suffice it to say that there never was a meeting of the minds between the parties in this case, without which a binding contract could not be formed. The fact that there was no such meeting of the minds can be laid squarely at the feet of the defendant because of its poor business practice of the day, which in this case was exacerbated by the failure to make any meaningful reference on the Bill of Sale document that the transaction was intended by the dealership to be in the nature of a lease with a residual value payment obligation at its expiry in order for title to be acquired.
[36] It follows that the defendant was completely unjustified in refusing the refund of the plaintiff’s deposit when requested to do so. Indeed, as noted earlier, Mr. Scarff testified that once he actually reviewed the pertinent documentation at his discovery examination, he realized that the dealership had made a mistake and was not in a position to win the case. He therefore paid into court the $500 deposit on June 24, 2003. The court is advised that a form of consent order allowing the payment out of court of $500 to the plaintiff has now been provided by defence counsel and the plaintiff’s claim for the return of the deposit has therefore been met.
[37] The matter does not end there, however, because the plaintiff’s claims for an award of general damages, aggravated damages, and punitive damages (as well as solicitor-client costs) remain in issue. I will now address each of these damages claims separately as they involve the application of different tests.
[38] The plaintiff’s claim for general damages is based essentially on the argument that the defendants’ conduct has caused her emotional distress and anxiety. Her evidence in support of a claim for general damages was that she came to the dealership in a disadvantaged situation, having to replace a car when she couldn’t really afford to, after emerging from a personal bankruptcy. She said that her unhappy experience at the dealership left her stressed, overwhelmed and angry and feeling that she had been treated as a nobody. She said that she found it unbelievable that the dealership would refuse the return of her deposit after they had sought to change the terms of the deal, knowing of her financial problems. She said that she talked to a lot of people about her experience as a way of helping herself to deal with the situation, including her family doctor and fellow psychologists. She did not, however, undergo any medical treatment or identify any specific medical symptoms of mental suffering.
[39] I have been referred to the decision of Justice Saunders in Gourlay v. Osmond (1991) 104 N.S.R. (2d) 155 in which general damages were awarded for mental distress in the context of a breach of contract action. In making such an award, Justice Saunders articulated (at paras. 40-41) the test to be applied and the evidentiary basis required in support (which in that case was a well documented “acute emotional breakdown” requiring considerable medical treatment and therapy). In so doing, he contrasted the fact situation before the Nova Scotia Court of Appeal in MacBeth v. Dalhousie University (1986) 26 D.L.R. (4th) 321 where the court, in refusing to allow such an award, stated at page 327:
My conclusion in this matter is buttressed by the fact that there is very little evidence to show that the appellant suffered any mental anxiety or that she required any treatment for such anxiety and in the absence of such evidence it would be very difficult in any event to determine damages.
[40] Here, as in the MacBeth case, the evidence is simply inadequate to support an award of general damages to the plaintiff for mental suffering, emotional distress and anxiety. Such awards are not lightly given in breach of contract cases. Apart from the limit of the types of contract cases where general damages have been awarded in the evolution of this area of the law, and the test of remoteness, as reviewed in MacBeth and Gourlay (and more recently by the British Columbia Court of Appeal in Wharton v. Tom Harris Chevrolet [2002] B.C.J. No. 233), there must in any event be compelling evidence of mental suffering having been inflicted beyond mere upset and frustration, having medical repercussions of some degree. That sort of evidence is not found in the present case and the plaintiff’s claim for general damages is therefore dismissed.
[41] In addressing the plaintiff’s further claims for aggravated and punitive damages, reference is made to the well-known decision of the Supreme Court of Canada in Vorvis v. I.C.B.C. (1989) 1 S.C.R. 1085. In that case, the court clearly stated the distinction to be made between punitive and aggravated damages, the essence of which reads as follows (at p. 1098):
Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory...
Aggravated damages are awarded to compensate for aggravated damage. As explained by Waddams, they take account of intangible injuries and by definition will generally augment damages assessed under the general rules relating to the assessment of damages. Aggravated damages are compensatory in nature and may only be awarded for that purpose. Punitive damages, on the other hand, are punitive in nature and may only be employed in circumstances where the conduct giving the cause for complaint is of such nature that it merits punishment.
[42] As indicated, the Supreme Court also cited with approval the Waddams text on The Law of Damages (2nd ed. 1983) at p. 562 which reads in part that “aggravated damages describes an award that aims at compensation, but takes full account of the intangible injuries, such as distress and humiliation, that may have been caused by the defendant’s insulting behaviour”. The Supreme Court went on to say that aggravated damages may be awarded in actions for breach of contract in appropriate cases and that while it may be very unusual to do so, punitive damages may be awarded in breach of contract cases as well.
[43] The fact of the matter in the present case is that if the evidentiary foundation presented by the plaintiff is insufficient to support an award of general damages, neither can it support an award of aggravated damages as a compensatory measure which are even more difficult to attain. The plaintiff’s evidence falls considerably short of establishing intangible injuries arising out of the defendants’ conduct , such as distress and humiliation, of such impact that would warrant an award of aggravated damages.
[44] Lastly, plaintiff’s counsel submits that the defendants’ conduct was reprehensible and should be deterred with an award of punitive damages. He characterizes the documents used by the defendant, put at its worst, as little more than a well orchestrated effort to mislead an unwitting purchaser into a series of meaningless and bewildering documents all calculated to place her in a position of vulnerability so that she would have little choice but to sign the lease agreement when she came back to pick up the car.
[45] I do not consider that such a finding is justified on the evidence. If it were, this court might well consider making an award of punitive damages. However, I am satisfied that the unfortunate outcome of this intended transaction simply arose out of a poor business practice which was then in place but which has since been corrected by the defendant dealership. Its careless handling of the matter, including the manner in which it responded to the plaintiff’s request for a refund of her deposit, left much to be desired but is not so egregious as to constitute an appropriate case for such an unusual remedy to be awarded. As the Supreme Court of Canada said in Vorvis (at p. 1107):
Moreover, punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.
[46] I find that the test set out in Vorvis (recently reviewed and applied by the Nova Scotia Court of Appeal in Woods v. Hubley (1996) 146 N.S.R. (2d) 97) has not been met in this case and the plaintiff’s claim for punitive damages is accordingly dismissed.
[47] There remains to be dealt with the matter of costs and in particular, the plaintiff’s claim for an award of solicitor-client costs. I invite written submissions on costs from counsel, which should be filed not later than month’s end.
J.