Dennis Ball v. Kimberly Ball, 2018 NLSC 88

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Ball v. Paradise (Town) , 2018 NLSC 88 Date : April 20, 2018 Docket : 201601G7575 Between: Dennis Ball and Kimberly Ball AppellantS And: Town of Paradise Respondent Before: Justice William H. Goodridge Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 9, 2018 Date of Oral Judgment: April 9, 2018

Summary: Appeal of Decision of the Taxing Master dismissed. Appearances: Michael J. Crosbie, Q.C. Appearing on behalf of the Appellants

Erin E.E. Best Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Mercer, Orsborn, Benson, Myles v. Lundrigan (1991), (NL SC), 278 A.P.R. 330, 89 Nfld.& P.E.I.R. 330 (Nfld. S.C.(T.D.)); Bartlett v. Corner Book (City) (2004), 2004 NLCA 50 , 240 Nfld. & P.E.I.R. 49, 711 A.P.R.49 (N.L.C.A.); D.D.S. Investments Ltd. v. Toronto (City) (2012), 201 L.C.R. 164, 2012 CarswellOnt 10991 (Sup. Ct.); Neill v. BritishColumbia (Expropriation Compensation Board) (1993), 81 B.C.L.R. (2d) 124, 50 L.C.R. 241 (S.C.) RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched.

D REASONS FOR JUDGMENT Goodridge, J.: INTRODUCTION [1] This is an appeal of a December 7, 2016, decision of Taxing Master, Augustine Bruce, Q.C. The grounds of the appeal are setout in the Notice of Appeal dated December 20, 2016. GROUNDS OF APPEAL [2] There are four grounds of appeal: (1) the Taxing Master erred in principle, in law, and in jurisdiction, in the taxation of the legal fee contract between Mr.

Crosbie and hisclients; (2) the Taxing Master erred in principle and law in holding that the paying of the twenty percent contingency component ($7,140.00),over and above the assessment of reasonable fees, was a double recovery; (3) the Taxing Master erred in principle and law by unreasonably reducing the fees claimed by approximately seventeen percent or$7,136.50; and (4) the Taxing Master erred in principle or law by reducing the fees claimed by the twenty percent contingency fee and then theadditional seventeen percent.

BACKGROUND [3] A legal fee account was taxed, inclusive of attendance at the taxation hearing, at $35,078.28. The Town of Paradise (the“Town”) paid that amount less a deduction of $7,140.00. The deduction made by the Town was the amount that Mr. Crosbie was paiddirectly from his clients (Mr. and Ms. Ball). It was paid by the clients under the terms of a contingency contract entered into when Mr.Crosbie first accepted the retainer. The clients agreed that Mr.

Crosbie could, as part of his fee arrangement, keep twenty percent of theamount of any settlement, to the extent that it exceeded what the Town had initially offered. The initial settlement offer from the Town,for the lands it expropriated from Mr. and Ms. Ball, was $9,370.52. The final settlement was $45,000.00. Twenty percent of thedifference is around $7,140.00. [4] Mr. Crosbie did not raise, in his Notice of Appeal, an issue that is in the background of the appeal, namely that the Town hasfailed to pay the full amount of the taxed costs. Mr.

Crosbie noted that he could have pursued the $7,140.00 balance outstanding througha notice of judgment and execution order, but instead decided to leave that issue, pending resolution of this appeal. [5] The terms of the final settlement are set out in an October 7, 2015 email exchange, the salient points of which include:

Ms. Best: I have instructions to offer Ms. Ball $45,000 plus your taxed legals in full and final settlement. Mr. Crosbie: Your client’s offer is accepted. [6] The settlement was $45,000.00 plus taxed legal costs. The issue for Taxing Master Bruce was the determination of thosetaxed legal costs. Exactly what was encompassed by legal costs is addressed in an earlier email from Mr. Crosbie to Ms. Best. ThatAugust 3, 2015 email says: The Town of Paradise is obliged to pay only the reasonable professional fees involved in preparing the expropriation notice andresponding to the expropriation notice.

The Taxing Master gets to decide what is reasonable and in that manner the Town is protected …the Town is only ever obliged to pay reasonable legal and professional fees. [7] The statement represents Mr. Crosbie’s expectations and those of his clients. I agree with the statement. [8] The appeal brief from Mr. and Ms. Ball was filed on September 8, 2017, which is about eight months outside the usualtimelines for filing these briefs.

It is common in appeal matters, as a matter of professional courtesy, that lawyers offer extensionsbeyond the strict timelines set out in the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D. I understood this morning thatthere was no insistence on the strict timelines, and that there were no court applications or letters to fix strict timelines. Under thecircumstances, as I have already stated at the outset of this hearing, there will be no adverse consequences or penalties because of the latefiling. The time for filing the Balls’ appeal brief is abridged.

STANDARD OF REVIEW [9] The appropriate standard of review for an appeal of a Taxing Master’s decision is not contentious. Both counsel agreed thatthe standard is correctly stated at paragraphs. 2 and 3 of Mercer, Orsborn, Benson, Myles v. Lundrigan (1991), (NLSC), 278 A.P.R. 330, 89 Nfld. & P.E.I.R. 330 (Nfld. S.C.(T.D.)): 2 …the Court should not interfere with the exercise of discretion by the taxing officer unless he acted on a wrong principle. Anerror in principle might arise, for example, because of misinterpretation of a tariff.

If the amount allowed is inordinately low orexcessive, the court may construe this as evidence of a wrong principle having been applied. 3 As to a finding of fact, while normally such findings by a taxing officer should be treated as findings of fact by a trial Judge, whenan appellate court has the benefit of all the evidence led at the taxation and the finding of fact is clearly in error, the appellate court mayreverse such a finding … ANALYSIS [10] The Taxing Master in this matter had discretion to determine the reasonable amount of the legal fees in the particular context ofthis case.

He exercised his discretion in accordance with the case law. His decision is reasonable and I uphold that decision. The appeal isdismissed. [11] The settlement that was reached in this matter, part of which I have read out, included the Town’s agreement to pay the taxedlegal costs. The case law cited by the Taxing Master, which I accept as current law, included paragraphs 21 and 22 of Bartlett v.

CornerBook (City) (2004), 2004 NLCA 50 , 240 Nfld. & P.E.I.R. 49, 711 A.P.R. 49 (N.L.C.A.): 21 … An owner is usually entitled to recover from the authority the reasonable costs incurred in obtaining legal advice and the assistance ofappraisers, accountants, planners and other professionals … 22 … Such costs must, of course, be reasonable. [12] Mr. Bruce discusses this concept (i.e. that costs must be reasonable) at paragraphs 51, 52, 53 and 107 of his decision. I agreewith, and adopt, the quotes and the comments that he has made in those paragraphs. [13] At paragraph 61 of his decision, Mr.

Bruce refers to para. 12 of D.D.S. Investments Ltd. v. Toronto (City) (2012), 201 L.C.R.164, 2012 CarswellOnt 10991 (Sup. Ct.). I agree with, and adopt the quote that he has taken from that decision: “… when the public purse is responsible, the expropriating authority is not given a blank cheque. Thus, the expenditures must be“reasonable” as outlined in the Expropriations Act.”

[ 14 ] At paragraph 94 of his decision, Mr. Bruce says the expropriating party will be required to pay those costs provided that they are found to be reasonable. That is, basically, the same thing Mr. Crosbie said in his August 3, 2015 email. Mr. Bruce then went on to examine the legal accounts and he decided, after reviewing the accounts, what exactly was reasonable. He accepted, as I interpret the decision, that the time charged was not contentious. I take that conclusion from paragraph 90 of his decision where Mr. Bruce says: “There was no suggestion that the time charged had not been expended by Mr.

Crosbie or his associates.” The focus of his challenge, in assessing the reasonableness of the legal accounts, was whether some of the work should have been charged at a lower rate. Mr. Bruce stated that there had been some unnecessary duplication of effort and that some of the research could and should have been conducted by other lawyers at lower rates. [ 15 ] Mr. Crosbie explained during submissions this morning why he did the research himself. I am not going to revisit Mr. Bruce’s conclusion on that point. It was a finding of fact, and I accept it.

Indeed the entire question as to what constitutes “reasonable costs” is essentially a question of fact. That was the view taken in Neill v. British Columbia (Expropriation Compensation Board) (1993), 81 B.C.L.R. (2d) 124, 50 L.C.R. 241 (S.C.) . I know Mr. Crosbie disagrees with this particular finding of fact (i.e. that some of the research should have been done by others at a lower hourly rate) but I do not necessarily disagree with it.

I am not going to interfere with that finding. [ 16 ] The issue about how to factor in the twenty percent contingency agreement, and what is reasonable, was the second ground of appeal. Mr. Bruce was obviously aware of this contentious issue because he discusses it in his decision. It is part of his analysis at paragraphs 113, 114 and 115. He addressed and rejected Mr. Crosbie’s argument that the Town had to pay an additional amount, the extra twenty percent, as part of the taxed costs. Mr. Bruce’s decision on that point, in my view, is reasonable.

There is no legal error and his decision is entitled to deference. [ 17 ] I agree with Mr. Bruce’s comments at paragraphs 114 and 115 of his decision. He considered this twenty percent contingency when he was deciding what was reasonable. He found that: “It would be difficult to accept that a twenty prevent contingency on the increase in value of the land expropriated could be added to what may otherwise be found to be reasonable costs.” Mr. Bruce assessed what was reasonable, fully aware of this fee agreement in the background. I agree with Mr.

Bruce’s comment at paragraph 115 of his decision: “To add the ‘bonus’ figure to the ‘reasonable’ fees to be charged on the expropriation would allow for a double recovery, which is not contemplated in any of the factors articulated”. I agree with that conclusion. TOWN’S DEDUCTION [ 18 ] There is an issue that is not subject to the appeal but which I am going to comment on to bring finality to this matter. That is the issue of the Town’s unilateral decision to deduct the twenty percent ($7,140) from the amount taxed.

The Town has no right to deduct the twenty percent from the taxed account, or from its obligation to pay the full amount of the taxed account. That deduction is contrary to the settlement agreement. The Town agreed to pay $45,000 plus taxed legals. These are two separate items; the Town must pay the $45,000 and the Town must pay the taxed reasonable costs. There is no deduction available to the Town for the $7,140. There may be a side deal between Mr. Crosbie and his client, but that is not relevant to the settlement or to the Town’s obligations. The Town has to pay the full amount that was taxed.

CONCLUSION [ 19 ] I find that there was no error of principle or in law by the Taxing Master in the way he handled the fee contract or the way he considered it in arriving at a reasonable assessment of costs. I find there was no error in principle or in law in the way he dealt with this twenty percent contingency fee. He considered this twenty percent at paragraphs 113 to 115. The Appellant’s allegations that there was an unreasonable reduction of the fee account (appeal grounds 3 and 4) are rejected. While Mr.

Bruce may have given more particulars or reasons as to how he arrived at the (roughly) seventeen percent reduction, it is not an issue that I am going to revisit. His reasons reveal that the reduction was based on an

interpretation of all of the information before him. He did give some particulars about where the deductions were arising, specifically, in the hourly rate for research work and in the duplication of effort. [ 20 ] I affirm the Taxing Master’s decision; the appeal is dismissed; the Respondent is entitled to its costs on the appeal. COSTS [ 21 ] Rather than prolong this litigation and awarding the Respondent costs to be taxed, I make a lump sum cost award.

I have discretion on costs under Rule 55.02, and I have discretion to award a lump sum under Rule 55.02(1)(a). [ 22 ] For preparation and attendance at this appeal hearing, and preparation and filing of all documents in relation to the appeal, I allow the Respondent costs of $1,300 plus HST. _____________________________ William H. Goodridge Justice