Executive Summary: Key Legal and Evidentiary Issues

• This costs decision arises from a dismissed slip-and-fall negligence claim brought by Lawrence Anthony Phillip Kennedy against property owner Crombie Developments Limited and restaurant operator Boone Food Services Limited.
   
• Civil Procedure Rule 77 governs the assessment of party-and-party costs, with Tariff A applied using the agreed "amount involved" of $70,000 as the primary benchmark.
   
• Central to the costs dispute was whether the Defendants were entitled to an uplift on tariff costs based on a formal offer to settle made on March 9, 2021, and an informal offer made approximately one month before trial on May 5, 2025.
   
• Rule 77.07(2)(b) permits the Court to consider unaccepted written settlement offers as a factor when adjusting tariff costs upward or downward.
   
• The Court disallowed certain disbursements claimed for subpoena service, mileage, hotel, and dinner expenses relating to witnesses Charles Miles and Leah Miles, finding it unnecessary to subpoena them given their connection to the defendant Boone.
   
• Costs were awarded to the successful defendants, with the final amount increased from the base tariff figure to reflect the defendants' settlement attempts.

Facts of the case

Lawrence Anthony Phillip Kennedy brought a claim against Crombie Developments Limited ("Crombie") and Boone Food Services Limited ("Boone") for damages arising from a slip and fall in the parking lot of an A & W restaurant in Lower Sackville, Nova Scotia. Crombie owns the land and parking lot where the A & W is located, while Boone leases the land and parking lot from Crombie and operates the restaurant. Both defendants were represented by the same counsel at trial. The issue at trial was liability only — the parties had agreed on damages prior to the commencement of trial. In a decision reported at 2025 NSSC 359, Justice Ann E. Smith dismissed Kennedy's claim. The parties were unable to agree on the quantum of costs and disbursements following that dismissal, prompting this costs decision.

Applicable rules and framework

Civil Procedure Rule 77 governs costs, fees, and disbursements in Nova Scotia. The general principle is that costs follow the result, with the overarching goal being to do "justice between the parties," as articulated by Fichaud J.A. in Armoyan v. Armoyan, 2013 NSCA 136. Costs for a trial action are ordinarily assessed under Tariff A, with Scale 2 (Basic) serving as the starting point. Under Tariff A, an additional $2,000 per day of trial is added to the table cost amount. Rule 77.07 gives the Court discretion to increase or decrease tariff amounts, and Rule 77.07(2)(b) specifically permits consideration of unaccepted written settlement offers. Rule 10.05 addresses the costs consequences of formal offers to settle that were not accepted by the losing party.

Positions of the parties

The parties agreed that the "amount involved" was $70,000, representing the agreed damage component of the action. The defendants sought costs of $25,500.00, while the plaintiff argued that a total award in the range of $4,000 was appropriate. The defendants filed written costs submissions supported by the solicitor's affidavit of Sarah Flanagan and the affidavit of Michelle Barnhart, a legal assistant at Intact Insurance, the liability insurer of the defendants. The plaintiff filed written submissions but did not submit affidavit evidence on costs.

Court's reasoning and analysis

Justice Smith accepted Scale 2 (Basic) as the starting point, yielding base tariff costs of $9,750. Since the trial ran approximately 2.5 days, she added $5,000 (at $2,000 per day) to arrive at $14,750. The defendants sought a further increase of $9,750 — representing 100% of the basic tariff amount — citing their formal offer to settle made on March 9, 2021, and an informal offer made approximately one month before trial began on May 5, 2025. The formal offer proposed to waive costs in exchange for a consent dismissal. Justice Smith found it was not unreasonable for the plaintiff to decline that offer, as at the time pleadings had not closed, discoveries had not yet taken place, and Green Arbour — the snow removal service Boone had contracted to remove snow at the A & W and then a third party — had not yet filed a defence. The informal pre-trial offer proposed settlement for the all-inclusive amount of $6,300, representing the disbursements the plaintiff had incurred to that point. Justice Smith found it was equally not unreasonable for the plaintiff to reject that offer, given that counsel had by then expended significant time and resources and the damage issue remained unresolved. However, she concluded that the defendants' attempts to settle, combined with their complete success at trial, justified a discretionary increase of tariff costs from $14,750 to $17,000.00.

On disbursements, the defendants claimed $4,508.56. Justice Smith disallowed expenses relating to the subpoena service, mileage, hotel charges, and dinner expenses for Charles Miles (owner of the A & W) and Leah Miles (an area manager of the A & W), finding it was unnecessary to subpoena them given that they were controlled by defence counsel and Boone was itself a defendant. Specifically, subpoena service costs were reduced by $142.00 (from $342.00 to $200.00), mileage claims for both witnesses totalling $341.60 were disallowed, and hotel and dinner expenses totalling $541.64 were disallowed. The total disbursement deductions amounted to $1,025.24, reducing the disbursement award from $4,508.56 to $3,483.32 (inclusive of HST).

Ruling and outcome

Justice Smith ordered that the defendants Crombie Developments Limited and Boone Food Services Limited are entitled to total costs of $17,000.00 and total disbursements of $3,483.32, for a combined award of $20,483.32, to be paid by the plaintiff Lawrence Anthony Phillip Kennedy by December 11, 2026.