Fougere v. Enfield Hardware Ltd.

Fougere v. Enfield Hardware Ltd.

Applying the Court's discretion under the old Rules and the principles in Bevis, the Court found Scotian Homes largely successful, that the Fougeres' conduct (overbroad and partly remediated claims, lack of timely expert evidence, causing adjournments, and damaging publicity) increased trial length and costs, and that a lump sum of $28,000 including disbursements was an appropriate substantial but partial indemnity to be paid by the Fougeres to Scotian Homes.

Citation
2009 NSSC 253
Parties
Plaintiffs/defendants by Counterclaim: Alan Murray Fougere and Linda Ann Fougere; Defendants/plaintiff by Counterclaim: Enfield Hardware Limited (Scotian Homes)
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
25 August 2009
Procedural Posture
Mechanics' Lien Action and Related Counterclaim / Costs Determination Post Trial
Outcome
Costs awarded to Enfield Hardware Limited (Scotian Homes) against Alan Murray Fougere and Linda Ann Fougere.
Legal Topics
Costs, Lump Sum Costs, Disbursement, Counterclaim, Adjournment, Expert Evidence
Source Language
English
Civil Procedure Mechanics' Lien Construction Law Costs Lump Sum Costs Disbursement Counterclaim Adjournment +1 more

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Parties

Alan Murray Fougere and Linda Ann Fougere

Plaintiffs/defendants by Counterclaim

Enfield Hardware Limited (Scotian Homes)

Defendants/plaintiff by Counterclaim

Procedural Posture

Mechanics' Lien Action and Related Counterclaim / Costs Determination Post Trial

Legal Issues

  1. 1 Whether to award costs under the Nova Scotia Civil Procedure Rules (1972) old Rules
  2. 2 Whether costs should be assessed by tariff or by lump sum under Rules 63.02 and 63.04
  3. 3 Appropriate quantum of costs given partial success and conduct of parties

Ratio Decidendi

Applying the Court's discretion under the old Rules and the principles in Bevis, the Court found Scotian Homes largely successful, that the Fougeres' conduct (overbroad and partly remediated claims, lack of timely expert evidence, causing adjournments, and damaging publicity) increased trial length and costs, and that a lump sum of $28,000 including disbursements was an appropriate substantial but partial indemnity to be paid by the Fougeres to Scotian Homes.

Court Disposition

Costs awarded to Enfield Hardware Limited (Scotian Homes) against Alan Murray Fougere and Linda Ann Fougere.

Orders

  • Lump sum award of costs including disbursements payable by the Fougeres to Scotian Homes in the amount of $28,000.00.
  • Payment to be made within 90 days of the date of the decision.