Sand, Surf and Sea Ltd. v. Nova Scotia (Transportation and Public Works)

Sand, Surf and Sea Ltd. v. Nova Scotia (Transportation and Public Works) Court Supreme Court Date 2005-10-14 Citation 2005 NSSC 278 Docket SH 224279 Judge/Registrar/Adjudicator Murphy, John D. (Honourable Justice) Document Type Decision Relations Library Sheet - Sand, Surf and Sea Ltd. v. Nova Scotia (Transportation and Public Works) - 2005 NSSC 278 - 2005-10-14 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Sand, Surf and Sea Ltd. v. Nova Scotia (Transportation and Public Works), 2005 NSSC 278 Date: 20051014 Docket: SH 224279 Registry: Halifax Between: Sand, Surf and Sea Limited Applicant v. The Minister of the Department of Transportation and Public Works for the Province of Nova Scotia Respondent SUPPLEMENTAL REASONS RESPECTING COSTS Judge: The Honourable Justice John D. Murphy Final Written Submissions: September 12, 2005 Counsel: Charles J. Ford, for the Applicant Catherine Jean Lunn, for the Respondent By the Court: [1] Sand, Surf and Sea Limited (“SSSL”) applied for a mandamus order (or alternatively, declaration) directing that the Respondent provide consent required pursuant to Section 42 of the Public Highways Act as a prerequisite to reconstruction of a building within 100 metres of the highway center line. The Application was dismissed, and the parties were given an opportunity to address costs. The Respondent has provided written submissions seeking costs of $6,000.00, and disbursements totalling $5,650.13, for a total of $11,650.13; although the Applicant made no post-decision submission with respect to costs, representations made during the hearing clearly indicated the Applicant opposes cost recovery by the Respondent. [2] Sand, Surf and Sea Limited commenced the Application on June 14, 2004. Both parties filed extensive affidavit evidence, including detailed survey information. Substantial written arguments were submitted, two pre-hearing conferences were held with the Court, and oral submissions occupied two days. [3] The Respondent achieved complete success, and the case involved no special circumstances to suggest the Court should deviate from the general practice that costs follow the event, as contemplated by Civil Procedure Rule 63.03(1). The Court has jurisdiction to award costs in favour of the Crown as an ordinary litigant, in appropriate circumstances (Orkin, The Law of Costs (2d) 205.1, p.2‑34). [4] Discretion to award costs pursuant to C.P.R. 63 is exercised following guidelines contained in Tariffs established pursuant to the Costs and Fees Act, R.S.N.S. 1989, c.104. This proceeding was commenced prior to the 2004 Tariff taking effect, and accordingly costs should be determined in the context of the Tariff established during 1989. [5] As the Application did not involve a specific monetary amount, the Court, as directed by the preamble to the Tariffs and C.P.R. 63, is guided by factors such as complexity of the proceeding and the importance of the outcome to the parties. In this case, the successful litigant, the Crown, was not exposed to risk, but was required to respond to challenges to a Minister’s discretion to regulate building of structures near highways, in the public safety context. From the Applicant’s perspective, the ability to continue its business operations was substantially dependent upon the outcome. The case therefore concerned important issues for both parties, who were required to address matters of substantial complexity including principles related to administrative law, conflict of statutes and statutory interpretation. The case also required development and analysis of expert evidence, technical in nature, involving boundary surveys and rights‑of‑way. [6] Resolution of the Application determined all matters at issue in the proceeding. [7] Based upon the foregoing considerations, I award the Respondent lump sum costs of $4,000.00. The successful party has provided evidence supporting disbursements including expert fees of $5,404.71, photocopy charges of $218.42 and courier charges of $27.00, all of which I find to be reasonable, and which total $5,650.13. [8] The Respondent is therefore entitled to recover costs and disbursements totalling $9,650.13. J.