Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General)

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) Court Supreme Court Date 2006-09-28 Citation 2006 NSSC 294 Docket SH 184701 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Relations Library Sheet - Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) - 2006 NSSC 294 - 2006-09-28 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2006 NSSC 294 Date: 20060928 Docket: SH 184701 Registry: Halifax Between: Cherubini Metal Works Limited, a body corporate Plaintiff v. The Attorney General of Nova Scotia representing her Majesty the Queen in Right of the Province of Nova Scotia, The United Steel Workers of America and The United Steel Workers of America, Local 4122 Defendants Judge: The Honourable Justice C. Richard Coughlan Heard: September 28, 2006, in Halifax, Nova Scotia Decision: September 28, 2006 (Orally) (Costs re Summary Judgment Application) Written Release: October 10, 2006 Counsel: Michelle C. Awad, for the plaintiff, Cherubini Metal Works Limited Bettina Quistgaard, for the defendants, United Steel Workers of America and the United Steel Workers of America, Local 4122 Coughlan, J.: (Orally) [1] By decision dated August 2, 2006, I dismissed the application for summary judgment of the United Steel Workers of America and the United Steel Workers of America, Local 4122. In the decision, I stated if the parties were unable to agree on costs I would hear them. The parties have been unable to agree. [2] I have read the written submissions filed on behalf of Cherubini Metal Works Limited and the Unions, and heard counsel. Cherubini is seeking costs in the amount of $12,000.00, payable forthwith, and the Unions are seeking costs in the cause, with the amount to be determined by the trial judge. [3] The issues raised in the application were complex legal issues. They were serious issues. Are the issues which were raised in the application similar to those which will be eventually decided following full trial, so as to support the position costs should be in the cause? [4] There were five issues raised in the application: [5] First, the matters in dispute between the plaintiff and the Unions arise from the Collective Agreement and are within the exclusive jurisdiction of a labour arbitrator. This issue is not the same as an issue at trial. The summary judgment application is determinative of the issue. This was a legitimate issue to be determined involving a great deal of case law, including numerous decisions of Courts of Appeal and the Supreme Court of Canada. [6] Second, the action against the Unions should be dismissed because all of the issues were decided or settled in the binding mediation/arbitration process. This issue is not the same as an issue at trial. The summary judgment application is determinative of the issue. [7] Third, the action against the Unions in negligence should be dismissed because the Unions did not owe the plaintiff a duty of care in tort. This will be a live issue at the trial. The summary judgment application did not determine the issue. [8] Fourth, the action against the Unions for conspiracy with the Attorney General of Nova Scotia should be dismissed because the tort of civil conspiracy should not be extended to the circumstances of this case. This will be a live issue at the trial. The summary judgment application did not determine the issue. [9] Fifth, the action against the Unions should be dismissed because, in the absence of a valid claim in negligence or conspiracy, there was no unlawful means used. This will be a live issue at the trial, not determined by the summary judgment application. [10] There being two issues finally determined by the summary judgment application, this is not an appropriate case for costs in the cause, a definite amount of costs should be assessed. [11] In determining the quantum of costs, I must consider the complexity of the issues before the Court; the importance of the matters to the parties and the amount of effort involved in preparing for and conducting the application. [12] The issue as to whether the courts or an arbitrator has jurisdiction is complex. The issue of whether a duty of care exists is also complex and involves a novel claim. The issues are of great importance to the parties. If the application had been successful, the proceeding would have been at an end. It is obvious from the material filed and the arguments made to the Court over a two day period, a great deal of effort was involved in preparing for and conducting the application. [13] Considering the nature of the application, I find the appropriate costs of this application to be $6,000.00. [14] I find it is unnecessary for me to determine whether the 2004 Tariff applies, although it gives guidance as to the amount of costs to be awarded in Chambers’ applications, the amount I awarded would be appropriate under either the 2004 Tariff or the previous Tariff. [15] Cherubini asks that the costs be payable forthwith. The application for summary judgment was not an abuse of the court’s process, but rather dealt with serious, legitimate issues. In giving the Court of Appeal’s decision in North American Trust Co. et al. v. Salvage Association (1999), 173 N.S.R. (2d) 249, Bateman, J.A. stated at p. 260: In Banke Electronics Ltd. v. Olvan Tool & Die Inc. (1981), 32 O.R. (2d) 630 (H.C.), Cory, J., as he then was, said: Costs may be used by the court in order to control its processes. By withholding costs or by the award of costs, it may discourage unnecessary interlocutory proceedings. For example, by directing that costs be payable forthwith in any event of the cause, the court will discourage interlocutory applications which are frivolous and without merit. Such an award of costs will no doubt be made sparingly. It must be remembered that a requirement that costs of an interlocutory application be made forthwith may prevent a meritorious action from coming to trial. A less important but not insignificant factor that should also be considered is that it is preferable if there is only one taxation of costs. At that time all aspects of the litigation can be considered and weighed by the Taxing Officer. (Emphasis added) [16] This is not an appropriate case for costs to be payable forthwith. [17] In giving my oral decision, I fixed costs at $6,000.00, payable in the cause. The costs should be payable in any event of the cause. [18] Cherubini Metals Works Limited shall have its costs of the application for summary judgment against the United Steel Workers of America and the United Steel Workers of America, Local 4122, in the amount of $6,000.00, payable in any event of the cause. _______________________________ Coughlan, J.