Executive Summary: Key Legal and Evidentiary Issues

• Costs were the sole matter before the court, following a February 24, 2026 decision dismissing all of the Plaintiffs' claims against both Defendants.
• Central to the costs analysis was whether to apply the Tariff under Rule 59 or to award an elevated lump sum, given the complexity of the case and the Plaintiffs' conduct.
• A rejected pre-trial settlement offer, made approximately two weeks before the start of the two-week trial, was a factor weighing in favour of the Defendants on costs.
• Problematic conduct by the Plaintiffs — including late disclosure of field tests, a shifting theory of liability, and alleged delays — influenced the scale of costs awarded.
• Pre-judgment interest claimed was reduced by 50% in calculating the "amount involved," resulting in a total figure of $755,600.00 used for the Tariff assessment.
• Each Defendant was awarded costs separately at Tariff A, Scale 5, given that both retained independent counsel throughout the litigation.

Facts of the case

Mario & Anne Levesque Holdings Inc. and Mario Levesque (the Plaintiffs) commenced a claim in 2013 against E.I. Dupont Canada Company (DuPont) and Grand Falls Agromart Ltd. (Agromart), a product liability action that ultimately proceeded to trial before Justice Kathryn A. Gregory of the Court of King's Bench of New Brunswick. The trial ran from March 17 to 28, 2025, in Saint John, New Brunswick. The Plaintiffs sought a total of approximately $965,000, comprising $545,600 in damages and approximately $420,000 in prejudgment interest accrued over the approximately 12 years since the claim was filed. On February 24, 2026, Justice Gregory dismissed the entirety of the Plaintiffs' claims against both Defendants. The matter before the court in the present decision, dated May 26, 2026, was confined to the determination of costs payable to the Defendants.

Contractual and procedural framework at issue

The costs determination was governed by Rule 59 of the Rules of Court of New Brunswick, which grants the court broad discretion to determine by whom and to what extent costs shall be paid. Rule 59.02 sets out twelve factors the court may consider, including the amount claimed and recovered, the complexity of the proceeding, the conduct of the parties, and any rejected offers of settlement. The court also considered three available cost options identified in the case law: solicitor-client costs, tariff-based costs, and lump sum awards.

Court's reasoning and analysis

Justice Gregory declined to award solicitor-client costs, noting that while the Plaintiffs' conduct during litigation was problematic, it did not rise to the level warranting that remedy. The court similarly declined to award an elevated lump sum, despite the Defendants' submissions highlighting their significant legal expenditures — DuPont reported $436,200 in legal fees and approximately $40,000 in disbursements, while Agromart reported $379,219 in legal fees and $21,726 in disbursements. Relying on the principles from Doucet v. Spielo, 2011 NBCA 44, the court affirmed that costs awards in New Brunswick are intended to provide partial, not substantial, indemnification, and that the Tariff promotes certainty and predictability for parties and counsel alike. The court found the Tariff to be the most appropriate method, noting that revisions to Rule 59 were pending but not yet in force, and that it would be unfair to depart from the Tariff as it stood given the parties' expectations at the time litigation commenced. Scale 5 was applied, reflecting the complexity of the product liability allegations and the Defendants' need to mount a full defence despite a lack of supporting evidence from the Plaintiffs. In adjusting the "amount involved," the court reduced the prejudgment interest component by 50% — from $420,000 to $210,000 — citing a consistent approach in prior decisions where delay was a factor, resulting in a total amount involved of $755,600.00.

Ruling and overall outcome

The court ruled in favour of the Defendants on costs. Each Defendant — DuPont and Agromart — was awarded costs pursuant to Tariff A, Scale 5, in the amount of $43,105.00, plus HST and reasonable disbursements. Agromart's listed disbursements were accepted as reasonable; DuPont's disbursements, stated to total $39,858.55, were similarly accepted. Justice Gregory acknowledged that while the total costs and disbursements award was significant from the Plaintiffs' perspective, it represented only a minor indemnification relative to the nearly $1,000,000 the two Defendants combined had spent defending the litigation.