IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Landry v. Landry, 2013 NSSC 275
Date: 20130909
Docket: Ant. No. 233933
Registry: Antigonish
Between:
Joyce Landry
Plaintiff
v.
Gerard Landry, Mildred Landry, Andrew Landry
Defendants
Judge: The Honourable Justice N. Scaravelli.
Heard: October 29, 30, 31, 2012, November 1, 2, 2012,
in Antigonish, Nova Scotia
Counsel: Adam Rodgers, for the Plaintiff, Joyce Landry
Clarence Beckett and Jeremy Smith co-counsel,
for the Defendants, Gerard Landry, Mildred Landry,
Andrew Landry
By the Court:
[1] In a reported decision [2012] NSSC 433, I dismissed the plaintiff’s action against the defendants based on the Tort of Assault Battery and alternatively, negligence under the Occupiers Liability Act. The parties were unable to agree on costs.
[2] The defendants seek costs in excess of the tariff amount. They submit the amount involved should be $380,150 as claimed by the plaintiff in submissions to the court, based on scale three recognizing the plaintiff’s conduct delaying proceedings. Costs should be increased by 25 per cent to account for a pretrial formal settlement offer. Additionally the defendants are entitled to $10,000 for the 5 day trial at $2,000 per day. The defendants claim costs of $66,797, disbursements of $9,751.51 together with experts fees of $2,500 for a total of $79,049.
[3] The plaintiff submits the amount involved should be $33,000 in accordance with my provisional assessment of damages. Based on scale two the figure amounts to $6,250. The sum of $10,000 would be added to the basic amount based on five days of trial. In addition, the defendants would be entitled to disbursements. The plaintiff submits that the defendants medical expert report fee of $2,500 was excessive and should be reduced. In total, the plaintiff submits the defendants cost should not exceed $25,266.71 including disbursements.
[4] Pursuant to Rule 77, the court has general discretion in making any order for costs, as well as the discretion to add to tariff costs. Relevant factors in considering increased tariff costs include; the amount claimed in relation to the amount recovered, a written offer of settlement that is not accepted and conduct of the party affecting the speed or expense of the proceedings. Rule 10.09 provides the court with discretion to increase tariff costs by various percentages in favour of a successful defendant depending on the time the formal offer was made prior to trial.
[5] Regarding the amount involved I choose to rely on the amount of damages provisionally assessed pursuant to Rule 77.18 (b) (i) which in this case was $38,000.
[6] I am satisfied this case warrants increased costs pursuant to Rule 77.07. The plaintiff was responsible to undue delay as stated in my decision reducing the period of prejudgment interest.
[40] (...) The Plaintiff was responsible for delays in discovery examination resulting in a court application [for] an order for her to attend. Failure to produce undertakings resulted in two applications and orders by the court. Having still not received compliance with the orders to produce, the defendant moved to have the matter set down for trial.
[7] The defendants were exposed to additional costs as a result of the plaintiff’s conduct. As a result I apply basic scale three amounting to $7,813. The trial lasted five days adding $10,000 to the basic amount totalling $17,813.
[8] The defendants made a formal offer to settle after the finish date. As the defendants obtained a favourable judgement, as it relates to the offer to settle, I award twenty five percent increase pursuant to Rule 10.09 (2) (d) which amounts to $4,453. Total costs awarded is $22,266.
DISBURSEMENTS
[9] The expert fees in the amount of $2,500 for review of all relevant litigation file material, expert opinion and report preparation were reasonable and necessary.
[10] The defendants claim of $9,751.51 in disbursements as per an attached schedule. The schedule sets out invoice numbers with corresponding amounts totalling $10,102. The disbursements are not identified. As a result I refer the
matter of disbursements to the appropriate adjudicator for taxation and determination as to whether the defendants’ disbursements are reasonable.