W. Mouck

Following a trial regarding a construction contract dispute where the plaintiff was substantially successful, the parties could not agree on costs.

The plaintiff sought costs of $63,898.45, relying on a Rule 49 offer to settle.

The defendants argued the plaintiff should be denied costs under Rule 76.13(3) because the action should have been pursued under the simplified procedure.

The court found it was reasonable for the plaintiff to have proceeded under the ordinary procedure given the initial construction lien claim and the need for viva voce evidence to resolve credibility issues.

The court awarded the plaintiff costs of $40,000 inclusive.

The defendant insurer moved to dismiss the plaintiff's action for long-term disability benefits, arguing the court lacked jurisdiction because the plaintiff's employment was governed by a collective agreement requiring arbitration.

The plaintiff, a registered nurse, was working in a temporary non-union management position on the date she became disabled and stopped working.

The court found that because the plaintiff was not in the bargaining unit on the date of disability, the collective agreement did not apply to her claim.

The motion to dismiss was dismissed, affirming the Superior Court's jurisdiction.

The defendant brought a motion to set aside a default judgment in a wrongful dismissal action.

The defendant argued that its failure to defend the action was solely due to the negligence of its former lawyer, who failed to act despite instructions.

The court applied the test for setting aside a default judgment and found that the defendant moved promptly upon learning of the default, had a plausible explanation for the default, and raised an arguable defence on the merits regarding cause for termination and damages.

The court granted the motion to set aside the default judgment but ordered the defendant to pay the plaintiff's substantial indemnity costs incurred due to the default.

The plaintiff, a 65-year-old general manager, was terminated without cause or notice after five years of employment when the defendant corporation was shut down.

The defendant abandoned its defence at trial.

The court awarded nine months' notice, equivalent to $48,749.94.

The court declined to deduct the plaintiff's post-termination earnings from inferior positions, finding he was forced to accept them to mitigate his damages.

The court also awarded $7,500 in exemplary damages due to the defendant's bad faith conduct in blackening the plaintiff's character in the community.

The applicants purchased property subject to a 99-year lease held by the respondent flying club.

Seven years later, the applicants sought to declare the lease void for contravening the Planning Act, arguing it was executed after an amendment that repealed an exemption for long-term leases.

The respondent argued the lease was saved by the doctrine of part performance prior to the amendment.

The court applied the four-part test for part performance and found that the respondent's actions, including surveying the property, making improvements, and paying rent, constituted part performance prior to the amendment.

The application was dismissed.

The plaintiff brought a motion to compel the defendant to deliver an affidavit of documents, but abandoned it after the defendant delivered the materials.

The defendant sought costs of the abandoned motion under Rule 37.09(3).

The court found the plaintiff acted unreasonably by setting a deadline and bringing the motion while knowing defendant's counsel was on vacation.

However, the defendant failed to provide a Bill of Costs and unnecessarily ran up the plaintiff's costs after the abandonment.

The court awarded the defendant nominal costs of $500.