Supreme Court

Cite as: Dow & Duggan Prefabrication Ltd. v. Smithers, 1991 NSSC 8 1986 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DOW & DUGGAN PREFABRICATION LIMITED, a body corporate - and ­ JOSEPH LUKE SMITHERS HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice David W. on January 15, 1991 DECISION: February 8, 1991 COUNSEL: Mr. Michael F. LeBlanc, Solicitor for the Appellant Mr. Robert G. Belliveau, Q.C., Solicitor for the S.H. No. 74813 APPELLANT/PLAINTIFF/ DEFENDANT BY COUNTERCLAIM RESPONDENT/DEFENDANT/ PLAINTIFF BY COUNTERCLAIM Gruchy, in Chambers, Respondent

1986 IN THE SUPREME COURT TRIAL DIVISION BETWEEN: DOW & DUGGAN PREFABRICATION LIMITED, a body corporate - and ­ JOSEPH LUKE SMITHERS GRUCHY, J. THE The Appellant ("Dow ( "Smi thers") were the parties to an action in this Court, s. H. No. 57549. The sUbject matter was a dispute concerning the design and construction of a' log pretabricator of the house and Smithers was the owner-constructor. The trial was held on November and 23, 1988, before Mr. Justice was filed on February 10, 1989, & Duggan was liable to Smithers for assessed. The final order provided that Smi thers should recover against Dow & Duggan 75'f, of $10,725.00 plus interest and further t h at; he should recover "75'1<, of of the costs of (Dow 1:1 Duggan) when taxed". S. H. No. 74813 OF NOVA SCOTIA APPELLANT/PLAINTIFF/ DEFENDANT BY COUNTERCLAIM RESPONDENT/DEFENDANT/ PLAINTIFF BY COUNTERCLAIM FACTS & Duggan") ind the Respondent house. Dow & Duggan was the 29, 30, December 1, 2, 21, 22 Richard. A written decision wherein it was found that Dow 75% of the amount of damages his costs when taxed, less 25%

- The matter of costs the Taxing Master, Arthur Hare, contention before Mr. Hare, including of experts' fees. Mr. Hare filed 3, 1990, wherein he dealt specifically with the accounts of J.W. Cowie Engineering Limited, the Dorey Engineering Limited, the engineer Hare reduced the Dorey bill from allowed the Cowie bill as presented in the amount of $15,739.23. Mr. Hare 's dispos i tion of costs is now which appeal is the subject matter of this proceeding. The appeal against taken pursuant to Civil Procedure Rule 63.38; the subject matter of the appeal is limi ted by virtue of powers are set forth in Rule 63.40. "Time and contents of appeal 63.38. (1) A person pecuniarily interested in the result of a taxation may, not later than ten days after he has received notice of a certification the taxation as herein provided. (2) An appellant shall chambers by filing with the prothonotary a notice of appeal and serving it upon every opposite party. (3) A notice of appeal ob jected to, the grounds of the of the hearing of the appeal. (4) A notice of appeal shall be, (a) returnable within fifteen it with the prothonotary; and ( b ) served on all parties directly affected the appeal not less than 2 - . proceeded to taxation before Q.C. Various items were in particularly the matter a written decision on October engineer for Smithers, and D.B. for Dow & Duggan. Mr. $21,581.57 to $16,000.00 and under appeal, the taxing mas ter' s decis ion is Rule 63.39; the Courts' Those rules are as follows: on taxation, appeal appeal· to a judge ln taxing officer and the shall specify any item ob jection, and the -d a te days from filing by three days before the

- date set for the hearing [E.62/33/35] (5) Notwithstanding Part, an appeal from a taxing officer's of a party's entitlement to disbursements in a proceeding in which the costs between by a court shall be to the the costs between the parties, unless the court otherwise orders. Appeal confined to items specified 63.39. (1) Unless the court otherwise orders, from a taxation shall be confined to the items and grounds specified and shall be heard on the evidence before the taxing officer. (2) The decision be final and conclusive on all matters been appealed from. Powers of judge on appeal 63.40. On an appeal from a taxation, the court may (a1 exercise all the powers of a taxing officer; (bl review any discretion exercised by the taxing officer as fully as if the by the court in the first instance; and (cl grant such order on the application, including the costs of appeal and taxation, as is just." This matter should ordinarily Justice Richard pursuant to Rule in regular Chambers and was then scheduled for a special Chambers matter. No objection was made to my hearing the matter and both parties have proceeded before me. this appeal will be heard and disposed of by myself. The items under appeal, in my consideration, are the account of A.B. 3 ­ of the appeal. anything contained in this determination the parties were determined same judge' who determined an appeal of the taxing officer shall which have not taxation were made have come before Mr. 63.38 (5) . It came before me I will, therefore, order that and to which I am restricted Dorey, the account

- of J.W. Cowie, Kempton Appraisals The grounds to which I am similarly restricted are as set out in the notice of appeal as follows: "1. The Learned Taxing Master that the costs for the Defendant/Plaintiff by Counterclaim, should not be reduced. 2. The Learned Taxing Master erred in finding that the Learned Trial Judge did not in error and accordingly that was justified. 3. The Learned Taxing Master erred in finding that costs are payable on Cowie's account despi te that they remain unpaid. 4. The Learned Taxing Master erred in failing to adjust for that portion of Cowie's Three Thousand Dollars ($3,000.00) Judge. 5. The Learned Taxing Master erred in allowing the costs for expert opinion evidence given Limi ted, where the evidence the proceeding. 6. The Learned Taxing Master erred in allowing the costs for Brian Burnell, provincial actuary, Burnell did not file a report or give evidence at trial. 7. The Learned Taxing Master Dorey's Bill should be reduced. Tr ial Judge had accepted his Respondent's expert engineer. 8. Such other errors and grounds as may appear." Mr. Jus tice Richard experts in an unequivocally appreciate fully Mr. Justice Richard's sense of frustration the engineering evi<Jence ad<Juced extensively those parts of his decision bearing on that subject. 4 ­ Limited and Brian Burnell. erred in law in holding expert witness for the J.W. Cowie ("Cowie") find Cowies evidence to be a reduction in the Bill account which was fixed at by the Learned Trial by Kempton Appraisals had no probative value in ­ despite that Mr. erred in holding that Although the Learned opinion over that of the dealt wi th the two eng ineer ing critical manner. In order to w i th before him, I set forth

- observed condition of the Smithers residence, up with so widely divergent cause of the problems but also as occurred to me during the trial that who apparently respected one rapport ought to have consul ted with effort to at least rationalize, differences in the interests of their respective clients. Such a consultation was suggested by Dorey.R. Murrant, who had previously acted for said he was "adverse" to engineers talking! That counsel was concerned about the two experts talking and advised against Because of this the two experts did not consult but merely maintained, if not hardened, their adversarial positions. In my view, this is carrying the adversarial the extreme, rendering the their respective clients or to the court." But the difficulty was not restricted to the engineers themsel ves. At least one of the parties, Smithers, did not even follow his own engineer's advice. " The engineers were equally divergent in their opinions as to the appropriate resolution weaknesses at the Smithers a temporary wire cable and turnbuckle system on the second floor which would prevent any roof system and avoid total This temporary solution was wea ther moderated and the diminished. As a permanent rather intricate network of support mechanisms to be superimposed upon the roof beams and outside walls. It recommending a heavy steel walls, which would support the roof by pieces emanating out from an of the inter ior roof beams. suggested by Cowie was presented to Smithers. without consultation, amended had the steel erected in a at a cost of some $8642.00. Smithers placed the supporting "I" of the building against the he hoped to preserve the exterior appearance of the house. 6 ­ could come views, not only as to the to the solution. It two such people another and had a good each other in an if not resolve their Smithers in this matter ( si t ting ) down and any such consultation. system to experts of little value to Mr. Justice Richard continued: of the structural residence. Cowie proposed further spreading of the collapse from snow load. not acted upon since the threat of a snow 'load solution Cowie designed a steel "I" beams and steel appeared that Cowie was frame, independent of the a number of steel "I" beam attached to one The permanent solution as Smi thers, the Cowie proposal and somewhat different manner In revising the proposal, beams on the interior two end walls. In this way

- In appearance, these structural modifications range unsightly to almost grotesque, true reflection of appearance. accentuated by Mr. Smithers I brown or black, which, on a natural pine background served only to highlight the structure. professional services in $8516.37 as reflected in invoices and January 26, 1988. Cowie variation of his recommendations the structur~l problems and expenditures are necessary." While dissatisfied Mr. Justice Richard ultimately and testimony of Dow & Duggan's expert, Dorey. " In any event, I am of the matter as well as the practicality of the solutions fall somewhere between the two posi tions taken by the parties t . and their experts. Although accept either v i ew in its entirety, the more practical and common Dorey and I adopt that approach in favour of that taken by Cowie. At the risk of simply because it makes better common sense." The learned trial to liability is as follows: I find that Dow and Duggan is respons ible, ei ther in breach of contract or losses suf fered by Smi thers the structural deficiencies:" ordered to pay 75% of the costs of Smithers, said cost to be taxed on a party and party basis." But Mr. Justice Richard's expert evidence did not end with his finding 7 ­ from if the pictures are a The unsightliness was painting the steel a dark Cowie's charges for this regard appears to be dated March 31, 1987 said that the Smithers does not fully resolve further modifications and with both engineering experts, favoured, in part, the advice He said: view that fault in this I am constrained not to I find favour wi th sense approach taken by repeating myself, I do that judge's conclusion with respect negligence for 75% of the which directly relate to Dow and Duggan is also dissatisfaction with the on liability. The

- 9 Kempton further estimated that the potential increase in value would be based upon the lower, rather than the higher value first year along (alone) this could be an added loss of $1725. It is unfortunate that Smithers has suffered, and wi 11 continue to suf fer result of the structural and aesthetic characteristics of his dwelling. I am of the view that Dow and Duggan ought only be held liable flowed reasonably from its I have already found that unreasonable and therefore, logically, ought not be liable for any costs or losses flowing from that treatment. This of the Cowie survey, the cost of the steel fabrication and installation and the loss Kempton. Although I am not entirely satisfied with Dorey's estimated cost for completing I find it more realistic of. Cowie wi th which I have no other figures before me to accept the estimate of Dorey of $2725.00. I fix damages suffered for repairs to the dwelling house; damages for the inconvenience which these structural problems caused to Smithersj determination of cost of the services to advise Smithers fixed at .$3,000. rejected much of Cowie's the opinions expressed I which relate to the rejected professional opinion." Based upon Mr. Justice Richard's decision, the parties then proceeded to tax costs. written decision dealt only engineers. The Taxing Master's disposi tion of the accounts as set out above. According to Dorey 's b i 11 was challenged for var ious reasons, too much time was spent on preliminary matters arid he ha d e ppa r e n t Ly stayed in court during ­ a factor of 7.5% of and in the f inahcial losses as a for those cost (s) which breach or negligence. the Cowie treatment was Dow and Duggan will includ~ the cost of value as set by the required repairs and practical than that already dealt. Having I am therefore forced by Smithers at 2725.00 $5,000 as general a somewhat arbitrary of an expert Since I have professional report and cannot allow those fees Essentially the taxing master's with the accounts of the two was the taxing mas ter' s decis ion I inc luding that and preparation the whole course

- 10 of the trial. Dow & Duggan's position, as reported by the Taxing Master, was that Dorey had found errors in Cowie's work, necessitating lengthy recalculations. continued presence in court throughout by the Taxing Master or advanced before me. With regard to the quality of the engineer's evidence, Mr. Hare concluded: " Neither the evidence decision make any reference Mr. Cowie 1 s presentation. wrote extensively about the I think it is fair to say that neither the resolution of the matter no reference to the quality of Dorey's evidence was accepted because it made more common sense than Cowie's." I respectfully disagree Haster's conclusion. There is Richard as to the quality of engineers, but the criticism and of both is very clear. Mr. Hare then referred to the assertion that Cowie's bill should be reduced as Smithers' refused to co-operate in pre-trial discussions been of assistance to the parties tha t whi le the judge "was aware witnesses" and made specific provisions did not indicate that there should of the fa i 1ure ref erred to." The referred, In this context, to ORKIN, I take this to be tile 1968 Edition as I a 196~ Edition. It appears that ­ thereby No reason for Dorey's the trial was reported presented nor the Judge's to the incorrect state of The Judge, in his Decis ion, evidence of the engineer. engineer made easy. However, there is the evidence other than with the Learned Taxing no express finding by Justice the evidence of either of the disapproval of the evidence former counsel had allegedly which may have and to the Court. He . said of the costs of having these concerning same " ... he be a disallowance because taxing master's dec ision also 1969 Edition, at page 19. have been unable to locate the reference is to those

- 11 sections of the text wherein the author sets forth those grounds for which a successful party may current version of ORKIN (2nd para. 205.2(2).) The taxing master did of "misconduct of the parties" concluding that the trial judge should be a disallowance because of the failure referred to." The taxing master's the fees in question must be reasonable and he referred to certain principles which he found helpful. of which is not identified, are as follows: "The Board finds that the general principles to be followed in determining such reasonable as follows: 1. Full costs of and incidental ! properly made pursuant should be paid by the The costs should however reflect such reasonable, economical and straight-forward presentation as is necessary to properly present the owner's case to the Board. 2. The owner should not unnecessary wor~ or other incurred through over-caution or over preparation.. 3. The owner should not be the result of misconduct, by the owner. 4. The tariff of costs prescribed li tigation may be accepted but where, in the opinion of the Board, fixed by 'that tariff are inordinately high to compensate for necessarily and reasonably is not bound by such tariff and should not follow it. " ­ be deprived of costs. (The Ed. ) deals with this subject at not address the matter beyond making that reference and "did not indicate that there decision then concluded that Those principles, the source costs may be summarized to an application to the Act by the owner expropriating authority_ preparation and be allowed the cost of experises or costs allowed costs which are omission or neglect for ordinary as a general guide; the fees either inadequate or the services rendered the Board .

- 12 (I note in r3,:,;sj_ng apparently those enunicated by Board and that accordingly, an body which is by the nature of the proceeding vastly different from ordinary litigation.) The by the Taxing Master and he ruled implici tly that account was in part for unnecessary work and reduced the account from $21,581.57 to $16,000.00, account of Cowie. The other items at mentioned by the Taxing Master. below. COURT'S POSITION ON AN APPEAL FROM A TAXING MASTER There is no question jurisdiction to hear an appeal 63.40. But the jurisdiction of the Court is somewhat restricted. I refer to Rent Review Commission et al (1983), 56 N.S.R. (2d) 309, said: " [3] At first blush, it would· appear before the judge on appeal a hearing de novo. This is so, subject to the following comments. I refer to the (1979), 35 N.S.R. (2d) 435; Justice Glube, as she then taxation and applications taxations. I subscribe to the learned justice's comments on p , "438: decision of a Taxing overturned, except .where proceeded on a wrong principle, been a gross error. ­ that these principles are an Expropriations Compensation approach must be taken by that second principle was invoked Mr. Dorey's or to equal approximately the issue in this appeal were not I will deal wi th each of them but that the Court has the of this nature pursuant to Rule v : Rawdon Realties Limited wherein Mr. Justice Richard that the hearing would be in the nature of case of Gillan v. Latimer 62 A.P.R. 435, where Madam was, reviewed principles of involving appeals from Master will not be the Taxing Master has or there has