Roode v. Johnston

Roode v. Johnston Court Supreme Court Date 2019-01-16 Citation 2019 NSSC 22 Docket Pic No 409920 Judge/Registrar/Adjudicator Scaravelli, Nicoll M. (Honourable Justice) Document Type Decision Relations See also - Johnston v. Roode - 2019 NSCA 98 - 2019-12-19 - Decision See also - Roode v. Johnston - 2018 NSSC 293 - 2018-11-20 - Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Roode v. Johnston, 2019 NSSC 22 Date: 20190116 Docket: Pic No 409920 LEO ROODE and WENDY ROODE Plaintiffs and THE ATTORNEY GENERAL OF NOVA SCOTIA, REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA and GLENN ROBERT JOHNSTON, DEBORAH GAIL JOHNSTON AND ALYSSA ROSE JOHNSTON AND THE ESTATE OF HELEN BARID AS REPRESENTED BY EDWARD F. BAIRD, PERSONAL REPRESENTATIVE Judge: The Honourable Justice N. M. Scaravelli Decision: January 16, 2019 Counsel: J Gregory MacDonald, QC for the Plaintiffs Brian Casey, QC and Allison Reid for the Defendants – Johnston Introduction: [1] This is a decision on costs following a four day trial dealing with land issues. [2] I released a written decision on November 20th, 2018 granting remedy claimed by the plaintiffs: 1. An Order quieting the title based on adverse possession, to a 50’ x 102’ portion of the defendant’s land as shown on a plan of survey; 2. An Order declaring a right of way by prescription in favor of the plaintiffs over an existing pathway on the lands of the defendants leading to the beach as shown on the plan of survey; 3. Costs to be determined by the court in the event the parties were unable to agree; [3] The plaintiff seeks a lump sum award based on 80% of legal fees in the amount of $35,824.81 plus disbursements and HST of $9,019.08 as well as survey costs of $2,645. The plaintiff seeks a total of $47,488.84 costs. [4] The defendants submit that costs should be determined by tariff A based on the amount involved in the dispute. The assessed value of the “entire” defendants’ property is $50,400. As the lot in dispute amounts to 50’ x 102’ and is subject to other property interests, the defendants submit the amount in issue should be less than $40,000. Based on this method the defendants calculate costs of $13,250 plus disbursements and HST of $11,664.08 totalling $24,914.08. [5] The defendants submit that previous settlement offers together with the “small value” of the land in dispute should reduce the amount of costs to $8,000 inclusive of disbursements. [6] I reject the defendant’s approach to calculation of costs. In order to apply tariff A there must be an “amount involved” . There was no amount involved in this action claiming adverse possession and prescriptive right-of-way. [7] In determining costs in cases of this nature, the courts in Nova Scotia have often concluded that a lump sum approach was appropriate. Hennebery v. Compton, 2014 NSSC 412; Shannon v. Frank George's Island Investments Ltd., 2015 NSSC 133; Laamanen v. Cleary, 2017 NSSC 153. I adopt that approach. [8] The plaintiff’s counsel have provided a detailed account of actual fees and disbursements incurred. This information removes the burden of having to assign an artificial amount based upon other factors. [9] In Armoyan v. Armoyan, 2013 NSCA 136 (N.S.C.A.) the court established the “substantial contribution” principle to fees and expenses. The amount awarded should be more than 50% and less than 100% of reasonable legal fees and disbursements. [10] Civil Procedure Rule 10.03 deals with settlement offers and costs. 10.03 A judge who determines costs may take into consideration a written offer of settlement made formally under this Rule or otherwise, unless the offer was made at a settlement conference or under an agreement that the offer would not be admissible in relation to costs. [11] In September 2012, the plaintiff offered to conduct and assume full costs for survey and subdivision approval for the 50’ x 102’ lot being claimed. [12] In June 2013 the defendants offered to settle by selling the 50’ x 102’ lot to the plaintiffs for an undisclosed price provided the defendants remaining land was of sufficient size to support his septic field. This offer is not favourable to the defendants in light of my decision. [13] In March 2018 the plaintiffs made a formal offer to settle pursuant to Civil Procedure Rule 10.05. The offer was for a 12’ right-of-way for persons, animals and vehicles as shown on the plan of survey; title to the 50’ x 102’ lot as shown on the plan; costs to be determined by a judge. [14] The plaintiff’s settlement proposal was equivalent to the court’s decision with the exception of a provision for vehicles and therefore, is a relevant factor when considering costs. [15] The defendants did not take issue with the plaintiff’s counsel record of fees and disbursements . [16] I have reviewed the statement and find the amounts to be reasonable. [17] Having considered the relevant circumstances I conclude that a high percentage of fees and disbursements should be awarded. I award the plaintiffs 75% of legal fees incurred which amount to $33,585.75. I also allow disbursements of $11,664.08 for a total costs award of $45,249.83 inclusive of HST. Scaravelli, J.