IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Griffith v. Middleton (Town), 2005 NSSC 111
Date: 20050510
Docket: SAR 184826
Registry: Annapolis
Between:
Richard and Sharon Griffith
Plaintiffs
v.
The Town of Middleton and the Municipality of the County of Annapolis,
both being municipal bodies corporate pursuant to the
Municipal Government Act of 1998 and
The Director of Assessment in the form of
The Attorney General of Nova Scotia Representing Her Majesty The Queen
in Right of the Province of Nova Scotia
Defendants
Judge: The Honourable Justice Charles E. Haliburton
Heard: By written submissions.
Written Decision: May 10 2005
Counsel: Peter McInroy, for the Plaintiffs
W. Bruce Gillis, Q.C., for the Defendant Town and Municipality
Randall Duplak, N.S. Department of Justice for the Defendant Director of Assessment
By the Court:
[1] In this matter the Defendants seek to have costs fixed upon the discontinuance of the action by the Plaintiffs.
[2] Our Civil Procedure Rules include provisions with respect to the fixing of costs in such a case. Rule 40.03 (1) provides . . .
a party discontinuing a proceeding or withdrawing any cause of action therein . . . shall pay the costs of any opposing party to the date of giving notice of discontinuance or withdrawal . . .
Rule 63.03 (3) . . .
Where a party discontinues a proceeding, withdraws any cause of action therein, or withdraws his defence or any part thereof, liability for the costs are determined as provide in Rule 40.03
Rule 63.04 (1) . . .
Unless the Court otherwise orders the costs between parties shall be fixed by the Court in accordance with the tariffs and in such cases the amount involved shall be determined for the purpose of the tariffs by the Court.
[3] This was an unusual matter in which the Plaintiffs sought an order from the Court establishing the boundary line between two municipal units, the Town of Middleton and the County of Annapolis and to resolve a jurisdictional issue as to whether the Utility and Review Board was the appropriate authority to deal with an appeal from the Assessment Appeal Court relating to that issue.
[4] The position taken by the Plaintiffs was that the circumstances and subject matter raised complicated and novel issues. The position of the Defendants was that there was “no cause of action known to law” which could require the municipalities to change or settle the location of the boundary and that; to the extent that the action related to an appeal of the Plaintiff’s property assessment this matter was within the jurisdiction of the U.A.R.B. where the appeal was then pending. Thus the action was said to be “duplicitous”.
[5] Procedurally the action was commenced in the Supreme Court in Halifax in November of 2002. At the instance of the defence it was moved to Annapolis Royal in April of 2003. In May of 2003 the proceeding was stayed by the court pending the conclusion which would be reached by the U.A.R.B. in December of that year. Now, the Defendants having been notified that the Plaintiffs were abandoning their action, the Defendants filed an application for an order fixing costs. That matter was to be dealt with on February 8th, 2005 at which time the parties opted to file written submissions.
[6] The costs sought relate to the preparation and exchange of pleadings, affidavits and at least two appearances in court. I am mindful of the sense of frustration experienced and expressed by the Plaintiffs over what they perceive to be a long standing dispute with the Town and the County and their inability to obtain a definitive ruling satisfactory to them with respect to this municipal boundary line which passes through their home. The municipalities on the other hand are content with the boundary line as they understand it to exist. The continuing efforts of the Plaintiffs have the unfortunate result of imposing costs on their fellow tax payers. The municipalities were obliged to respond to this proceeding which the Plaintiff has now abandoned. The defendants are entitled to costs.
[7] While the Civil Procedure Rules and Tariff C provide guidance with respect to costs they are in the end in the discretion of the Judge. I find it appropriate in the circumstances to fix party and party costs at $1,000.00 together with disbursements which are allowed in the amount of $262.75.
Dated at Digby, Nova Scotia.
Haliburton J.