Citation: Wolverine Motor Works Shipyard LLC v. Canadian Naval Memorial Trust, 2012 NSSC 5
Date: 20120105
Docket: Hfx No. 226509
Registry: Halifax
Between:
Wolverine Motor Works Shipyard LLC
Plaintiff
v.
Canadian Naval Memorial Trust
Defendant
COSTS DECISION
Judge: The Honourable Justice Glen G. McDougall
Heard: March 15 - 18, 22, 24, 25 and June 4, 2010, in Halifax, Nova Scotia
Written Submissions
on costs: December 19, 2011 and December 20, 2011
Counsel: Michael S. Ryan, Q.C., for the Plaintiff
Matthew G. Williams, Ll.B., for the Defendant
By the Court:
[1] Wolverine Motor Works Shipyard, LLC (henceforth the “plaintiff”) sued Canadian Naval Memorial Trust (henceforth the “defendant”) in negligence. During the height of Hurricane Juan, the retired World War II corvette, HMCS Sackville, broke some of her mooring lines and collided with the motor/sailing vessel, Larinda, causing the latter to sink in Halifax Harbour. The Larinda was later refloated and sold for salvage.
[2] The matter went to trial. The trial lasted eight days. In a written decision dated July 29, 2011 the plaintiff’s claim for damages was dismissed. My decision did not speak to costs. Costs, however, normally follow the event and, as such, an award of costs is an appropriate consideration in this case.
[3] Counsel for the parties could not reach an agreement on costs. Written submissions were, therefore, requested. Based on those submissions, I am now prepared to give a decision.
Costs Generally
[4] Rule 77 of the Civil Procedure Rules deals with costs. Rule 77.06(1) states:
77.06 (1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act ...
[5] Rule 77.08 allows a judge to award lump sum costs instead of tariff costs. In addition to this, Rule 77.02 recognizes the general discretion a judge has in determining party and party costs:
77.02 (1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.
(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 ‑ Settlement.
[6] The judge who fixes costs may also add an amount to or subtract an amount from, tariff costs. (Rule 77.07(1))
[7] In regard to disbursements Rule 77.10 (1) “... includes necessary and reasonable disbursements...” in “[A]n award of party and party costs...”
Defendant’s Position
[8] As the successful party, the defendant is asking the Court to an award of costs totalling $262,333.43. Included in this total is an amount of $123,161.57 for disbursements.
[9] The bulk of these disbursements involved the fees charged by London Offshore Consultants (“LOC”). Copies of invoices from LOC were provided to the Court as an attachment to the affidavit of Mr. Wayne Frances, an associate lawyer at Ritch Durnford. Ritch Durnford acted as local counsel for Robinson Sheppard Shapiro L.L.P. of Montreal, lead counsel for the defendant. LOC’s invoices were tendered in English pounds. No conversion rates were provided to the Court.
[10] Taking into consideration the amounts paid to Hayes Stuart Atlantic Inc. ($15,789.47) and Martin, Ottaway, Van Hemmen & Dolan, Inc. ($14,800.83) it would appear that LOC charged in excess of $92,500.00 Canadian for their services.
[11] There is no disputing the value of the services provided by LOC representatives and the assistance to the Court of the evidence offered at trial. Having said that, the amount being sought by the Defendant must not only be necessary but reasonable.
Plaintiff’s Position
[12] Counsel for the plaintiff suggests that costs should be determined based on Scale 2 (Basic) of Tariff A using an “Amount Involved” of $300,001.00 – $500,000.00. This would result in legal fees of $34,750.00 plus an additional $2,000.00 per day for eight days of trial for a total of $50,750.00.
[13] Plaintiff’s counsel also challenges the reasonableness of the disbursement costs for Martin, Ottaway, Van Hemmen & Dolan, Inc. ($14,800.83) and LOC (£44,903.38). He also takes issue with the account of Hayes Stuart Atlantic Inc. ($15,789.47) who were retained by the defendant to conduct a survey and to assist defence counsel. A representative of Hayes Stuart Atlantic Inc. attended two days of trial but was not called to testify as a qualified expert. He suggests that the services rendered were for the benefit of the defendant’s liability insurers and should be for their account.
Court’s Decision
[14] Taking into consideration the relative complexity of the issues that had to be decided and the overall legal fees and disbursements incurred by the defendant in defending itself from the claims of the plaintiff, I feel this is an appropriate case in which to award a lump sum amount for legal fees. In doing so I take into consideration the amount initially claimed by the plaintiff which exceeded $900,000.00 Canadian. Based on Scale 2 (Basic) of Tariff A this would amount to $64,750.00 plus $16,000.00 (eight days @ $2,000.00 per day) for a total of $80,750.00.
[15] The actual amount of the claim if the Court had decided in favour of the plaintiff, was considerably less than this. As such I award legal fees of $65,000.00 along with disbursements of $74,925.83.
[16] I have determined disbursements as follows:
(i) London Offshore Consultants: $60,125.00 (65% of $92,500.00)
(ii) Hayes Stuart Atlantic, Inc.: $14,800.83
(iii) Martin, Ottaway, Van Hemmen
& Dolan, Inc.: Nil
Subtotal: $74,925.83
[17] I have discounted LOC’s total bill by 35%. This, in my opinion, results in a more reasonable figure taking into consideration the need for the report and the importance of the testimony of the expert in assisting the Court to decide this case. The added expense of engaging off-shore experts should not be borne solely by the plaintiff.
[18] I have decided not to order reimbursement or contribution by the plaintiff for the expense incurred for retaining the services of Hayes Stuart Atlantic, Inc. This expense was incurred solely for the benefit of the defendant and was of no assistance to the Court.
[19] In total the Court awards costs totalling $139,925.83 payable by the plaintiff to the defendant forthwith.
[20] I would ask counsel for the defendant to prepare the order reflecting my decision at trial as well as this decision on costs.
McDougall, J.