Supreme Court

SUPREME COURT OF Nova Scotia

Citation: Venedam v. Shaddock, 2021 NSSC 92

Date: 20210310

Docket: Pic No. 500029

Registry: Pictou

Between:

Leila Venedam, Personal Representative of the Estate of Rosella MacDonald

Applicant

v.

Rosella Shaddock, Wayne John Shaddock, Leanne Marie Shaddock and The Guarantee Company of North America

Respondents

By the Court:

[1]             The respondents, Wayne John Shaddock and Leanne Marie Shaddock (“Shaddocks”) seek costs on a “substantial indemnity basis” following a successful motion for summary judgment on the pleadings.

Background

[2]             The proceedings were commenced by way of Notice of Application in Court.  The applicant claimed indemnity from the Shaddocks as surety to a bond for the alleged misappropriation of Rosella Shaddock while she served as guardian of the estate of Rosella MacDonald.  Summary judgment was granted on the basis that the facts alleged in the pleadings did not make out a cause of action against the Shaddocks as surety to the bond.

[3]             Tariff C pursuant to Civil Procedure Rule 77 applies to matters heard in Chambers.

TARIFF C

Tariff of Costs payable following an Application heard

in Chambers by the Supreme Court of Nova Scotia

For applications heard in Chambers the following guidelines shall apply:

(1) Based on this Tariff C costs shall be assessed by the Judge presiding in Chambers at the time an order is made following an application heard in Chambers.

(2) Unless otherwise ordered, the costs assessed following an application shall be in the cause and either added to or subtracted from the costs calculated under Tariff A.

(3) In the exercise of discretion to award costs following an application, a Judge presiding in Chambers, notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application.

(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the Judge presiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending on the following factors:

(a)                         the complexity of the matter,

(b)                         the importance of the matter to the parties,

(c)                         the amount of effort involved in preparing for and conducting the application.

(such applications might include, but are not limited to, successful applications for Summary Judgment, judicial review of an inferior tribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction.)

Length of Hearing of Application                              Range of Costs

Less than 1 hour                                                            $250 - $500

More than 1 hour but less than ½ day                           $750 - $1,000

More than ½ day but less than 1 day                            $1,000 - $2,000

1 day or more                                                                $2,000 per full day

[4]             The respondent seeks a multiplier of three times the amount of $1000.00 costs under Schedule C, Sub-section (4) on the basis that the summary judgment order was determinative of the matter at issue in the proceeding.  Further that the subject matter was complex and important to the moving parties.  Specifically, the respondents seek costs plus disbursements of $3054.04 plus HST of $458.10 for each respondent.

[5]             The applicant submits that the appropriate costs award is the base amount under Tariff C without a multiplier.  That the matter before the court was not determinative of the Shaddocks liability as sureties under the bond as it is yet to be determined.  Further, the issue before the court on the summary judgment motion was not inordinately complex.

Decision

[6]             The court dealt with the summary judgment motion in a seven page decision.  The analysis was based on the ordinary or plain meaning of the relevant provisions of the bond as it related to the facts alleged in the pleadings. Essentially, it was determined that the claim against the Shaddocks was premature.  There could be no claim against the sureties unless or until there was a successful claim against the guardian, Rosella Shaddock, and subsequent default by her under a resulting order.

[7]             In my view, the issue on summary judgment was not complex.  Further that any potential liability to the applicant under the bond remains to be determined.  Moreover, both respondents were represented by the same counsel and advanced the same position at the hearing.

[8]             I conclude there are no special circumstances that justify deviation from the range of costs set out in Tariff C.

[9]             As a result, costs to the respondents are set at $1000.00 plus disbursements in the amount of $114.40.

Scaravelli, J.