Citation: Wilkins v. Hickman, 2009 NSSC 389
Date: 20091215
Docket: Hfx No. 289411
Registry: Halifax
Between:
Edward St. Claire Wilkins
Plaintiff
v.
Lloyd and Betty Hickman
Defendants
Judge: The Honourable Chief Justice Joseph P. Kennedy
Heard: November 20, 2009 in Halifax, Nova Scotia
Decision dated: December 15, 2009
Counsel: Mark S. Raftus for the Plaintiff
Joey D. Palov for the Defendants
By the Court:
[1] This matter came before me on the Appearance Day docket of November 20th, 2009.
[2] The plaintiff died in April of 2008, prior to the matter coming to trial, however, the action has not been terminated.
[3] The matter was placed on the docket by counsel for the defendants seeking an Order dismissing the action.
[4] Plaintiff’s counsel claims to be entitled to certain disbursements, citing ss. 2 and 4 of the Survival of Actions Act. Section 2(1) reads:
Except as provided by subsection (2), where a person dies, all causes of action subsisting against or vested in him survive against or, as the case may be, for the benefit of his estate.
[5] Section 4 reads:
Where a cause of action survives for the benefit of the estate of a deceased person, only damages that have resulted in actual pecuniary loss to the estate are recoverable, and in no case are damages recoverable for
(a) punitive and exemplary matters;
(b) loss of expectation of life;
(c) pain and suffering. R.S., c 453, s. 4.
[6] The plaintiff says that s. 4 of the Act enumerated damages not recoverable and disbursement are not excluded as damages. Therefore, they are pecuniary damages that are recoverable.
[7] I do not agree.
[8] Costs and disbursements are not pecuniary damages and, in the absence of a court Order, are not treated as such.
[9] The plaintiff has cited MacNeil and Gillis (S.C.N.S.) SN No. 04880 in support of his position. In that case the estate of the deceased plaintiff was awarded costs, (in addition to damages), however, in that matter there had been a finding of liability.
[10] Although the plaintiff submits that there was no issue as to liability in this matter, there was no such finding in favour of the plaintiff herein.
[11] I am dismissing the action.
[12] As a result, the defendants seek costs and disbursements as follows:
Schedule of Disbursements
Photocopies $ 10.75
Long distance telephone $ 0.09
Faxes $ 7.75
Postage $ 1.50
Delivery and courier $ 12.50
Binding $ 4.00
Scanning $ 16.65
Library Research $636.65
Total: $689.89
[13] I award costs of $500. I do not allow the claim for “library research” in this matter. It does not appear that the action was so complicated as to justify costs of this nature.
[14] The action is dismissed with costs payable to the defendants in the amount of $500 and disbursements of $53.24.
Kennedy, C.J.