Baffin Fisheries Coalition First Plaintiff And: Niqitaq Fisheries Ltd. Second Plaintiff And: Garth Reid First Defendant And: Valerie Reid Second Defendant - v. -, 2018 NLSC 87

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Baffin Fisheries Coalition v. Reid , 2018 NLSC 87 Date : April 19, 2018 Docket : 201701G6791 Between: Baffin Fisheries Coalition First Plaintiff And: Niqitaq Fisheries Ltd. Second Plaintiff And: Garth Reid First Defendant And: Valerie Reid Second Defendant - AND - AND: garth reid First Plaintiff by counterclaim And: valerie reid Second Plaintiff by counterclaim And: carroll group inc. third plaintiff by counterclaim And: niqitaq fisheries ltd. first defendant by counterclaim

And: baffin fisheries coalition Second defendant by counterclaim And: methuselah kunuk third defendant by counterclaim And: chris flanagan fourth defendant by counterclaim And: patrick martin fifth defendant by counterclaim - AND - And: niqitaq fisheries ltd. first plaintiff by counterclaim And: baffin fisheries coalition second plaintiff by counterclaim And: carroll group inc. defendant by counterclaim Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 18, 2018

Summary: The Plaintiffs by Counterclaim entered a judgment in default of defence against one of the Defendants by Counterclaim. Prior to noting him for default, this Court had ordered that the Plaintiff by Counterclaim substantially amend its pleadings. Despite the Court’s order, the Plaintiffs by Counterclaim took the position that the Defendant by Counterclaim was not entitled to receive any further notice in the action. At the hearing of the application to set aside the default judgment, the Plaintiffs by Counterclaim agreed that the application

should be granted. The only issue to be decided is the question of costs and it was held that costs of the application should be awarded to the Defendant by Counterclaim under Column 3 in any event of the cause. Appearances: Phillip J. Buckingham Appearing on behalf of the Plaintiff/ Defendant by Counterclaim Melissa Seal Appearing on behalf of the Defendant/ Plaintiff by Counterclaim Authorities Cited: CASES CONSIDERED: Baffin Fisheries Coalition v. Reid , 2018 NLSC 21 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] Methuselah Kunuk was served with the defence and claim of the Defendants, Plaintiffs by Counterclaim (hereinafter the “Reids”) on two occasions in late 2017, and lastly on December 8th, 2017 with an amended defence and counterclaim. He did not respond to the service. [ 2 ] Mr. Phillip Buckingham, acting on behalf of all of the Plaintiffs and Defendants by Counterclaim (hereinafter “Baffin Fisheries Coalition et al”), except Mr.

Kunuk, served an application on the Reids on December 4th, 2017 seeking the striking out of the cause of action by Valerie Reid and requiring that the prayer for relief be amended to set out damages to be assessed instead of particularized amounts. [ 3 ] Handrigan, J. of this Court ordered that the redrafted defence and counterclaim of the Reids be completed within 7 days of the filing of his order. In his written decision, cited as Baffin Fisheries Coalition v.

Reid , 2018 NLSC 21 , he stated at paragraphs 43, 45 and 47 as follows: [43] I agree with the defendants by counterclaim that paragraph 39 of the amended defence and counterclaim needs more particulars so that the defendants by counterclaim may know the relief that the plaintiffs by counterclaim are seeking against them. [45] Similarly, Garth Reid, Valerie Reid and the Carroll Group Inc. all appear to claim damages for defamation from all five defendants in paragraphs 39(

d) and (e). When the plaintiffs by counterclaim drafted their counterclaim, Valerie Reid’s defamation claim was still extant but there is no allegation in any of the pleadings that any of the defendants by counterclaim defamed the Carroll Group. [47] Some of the observations I make in the preceding paragraphs are self-evident, but the defendants by counterclaim have a right to know who is seeking what relief from them and the reasons for the request.

This is simply a matter of good drafting and the plaintiffs by counterclaim should attend to it. [ 4 ] Despite Handrigan, J.’s admonition delivered on February 6th, 2018 counsel for the Reids proceeded to note the defendant by counterclaim, Kunuk, for default of defence on March 8th. Kunuk was never served with the amended statement of defence and counterclaim that Handrigan, J. had ordered to be re-drafted. [ 5 ] Thereafter Mr. Buckingham was retained by Kunuk. Mr.

Buckingham invited counsel for the Reids to move to have the noting for default set aside and advised that he would consent to an application brought for that purpose. Counsel for the Reids responded that Mr. Buckingham should bring the application, and they would consent so long as it did not engender an award for costs. The lawyers corresponded back and forth and, ultimately, Kunuk’s counsel brought an application to set aside the noting for default to which, at the hearing, the Reid’s counsel consented.

[ 6 ] The parties are at loggerheads concerning the costs of the application. [ 7 ] Mr. Buckingham seeks costs on a solicitor and his own client basis or, in the alternative, costs calculated on Column 5. Melissa Seal, counsel for the Reids, takes the position that no costs ought to be awarded since her clients were always prepared to consent to the noting for default being set aside. She argues that a full blown application and hearing was unnecessary. ISSUE [ 8 ] Should costs be awarded and, if so, on what basis?

THE RULES OF COURT [ 9 ] Rule 55.02 indicates that the awarding of costs is in the discretion of the Court. [ 10 ] Rule 55.03 indicates that, unless the Court otherwise orders, costs shall follow the event. [ 11 ] Rule 55.05 indicates that, unless the Court otherwise orders, the costs of any interlocutory application are costs in the cause and shall be taxed upon the same scale as the general costs of the proceeding. [ 12 ] Rule 55.14(

b) indicates that where any thing is done or an omission is made, improperly or unnecessarily, by or on behalf of a party, the Court may order the party to pay the costs of any other party occasioned by the act or omission. ANALYSIS [ 13 ] The decision of Handrigan, J. was clear: the defendants by counterclaim have a right to know who is seeking what relief from them and the reasons for the request. This right to know included the defendant by counterclaim Kunuk. [ 14 ] Handrigan, J.’s decision was made in advance of Kunuk being noted in default of his defence.

Counsel for the Reids ought to have known that noting a party for default in relation to a counterclaim that required, by Court Order, substantial amendment would give rise, in the end result, to an irregular judgment. [ 15 ] Counsel for the Reids took the position, at the hearing, that Kunuk was not entitled to any further notice after January 7th, 2018 being 30 days from the date of service of the amended statement of defence and counterclaim. [ 16 ] With respect, I do not agree.

Rule 16.07 provides: Unless the Court otherwise orders or a rule otherwise provides, a defendant who fails to defend or appear on the hearing under an originating document shall not be entitled to receive notice of any subsequent steps taken in the proceeding against the defendant, other than the assessment of damages when ten days notice thereof by ordinary mail shall be given to the defendant. [ 17 ] Handrigan, J.’s decision made it clear that the defendants by counterclaim had a right to receive notice of who is seeking what relief from them and the reason for that request.

The amendments ordered were substantial in nature. Kunuk should have been served with the amended defence and counterclaim in advance of proceeding to note him for default. Kunuk was, accordingly, entitled to receive notice of the amended pleadings. [ 18 ] Counsel for the Reids ought not to have noted Kunuk for default. Having done so, they should have moved to set the noting for default aside when invited to do so by Kunuk’s counsel. [ 19 ] Counsel for the Reid’s recalcitrance in admitting their mistake engendered, in my opinion, an unnecessary application on the part of Kunuk.

However, given that there was no issue taken with respect to setting aside the noting for default, the portion of the Applicant’s brief relating to that issue wasn’t necessary. CONCLUSION [ 20 ] The noting for default is set aside and Methuselah Kunuk shall file his defence to the amended counterclaim within 14 days of this Order; [ 21 ] Methuselah Kunuk shall be entitled to the costs of this application in any event of the cause calculated in accordance with

Schedule 3. _____________________________ Vikas Khaladkar Justice