Adlair v. Nunavut, 2016 NUCJ 23

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Adlair v. Nunavut, 2016 NUCJ 23 Date: 20160914 Docket: 21-12-709-CVC Registry: Iqaluit Plaintiff: Adlair Aviation

(1983) Ltd. -and- Respondent The Commissioner of Nunavut, Government of Nunavut, as represented by Department of Community & Government Services, and Mark McCulloch, in his capacity as Manager, Procurement Contracts and Logistics, for the Department of Community & Government Services ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Plaintiff): Ed. J. Brogden Counsel (Respondent): Vincent J. DeRose; John L. MacLean Location Heard: Iqaluit, Nunavut Date Heard: April 13, 2016 Matters: Costs REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The plaintiff started a civil action seeking various remedies following the award of a Government of Nunavut medevac contract to a competitor. The plaintiff filed affidavits in support of its action. The respondents applied to the court to strike certain paragraphs in those affidavits. I ruled that the affidavits were based almost entirely on improper argument, inadmissible hearsay, and speculation. I struck the affidavits in their entirety from the record.

I then invited the parties to file written argument concerning the award of costs on the application. The plaintiff did not file any argument. The respondents claim from the plaintiff legal fees totalling $21,320 plus GST. They also claim $3,031 for the travel and lodging expenses incurred by their Ottawa lawyer who flew to Iqaluit to argue their application. II. ISSUES [ 2 ] There are two issues I must decide concerning costs: 1. Are the costs claimed by the respondents reasonable in all the circumstances? 2.

Is this one of those exceptional cases where costs should be ordered to be paid not entirely by the litigant, but shared by its lawyer? [ 3 ] For the reasons which follow, I rule that : 1. The respondents are not entitled to travel and lodging costs incurred by the lawyer from Ottawa. Nor are they entitled to a senior litigator’s legal fees. They are entitled only to a $10,000 award plus GST. 2. This appears to be a case where the cost award should be shared equally by Adlair Aviation

(1983) Ltd. [Adlair], and its counsel, Mr. Brogen. III. ANALYSIS A. Issue 1: are the costs claimed by the respondents reasonable in all the circumstances? [ 4 ] In civil court, the successful party in an action is generally reimbursed by the losing party for the costs it incurred. Those ‘costs’ are awarded by the court. [1] [ 5 ] The respondents claim they are eligible for the legal fees they paid to Mr. DeRose, a highly experienced lawyer they flew in from Ottawa.

They also say they are entitled to that lawyer’s travel and lodging costs because “the expertise required” to argue the application “is not available from those solicitors in the Territory”. [ 6 ] I disagree. [ 7 ] Mr. DeRose argued the respondent’s position succinctly and well. However, this was not a case as required in the rules where

such expertise had to be brought in from outside the territory. [2] Any Government of Nunavut staff lawyer in Iqaluit could have made this argument. Mr. MacLean, who attended with Mr. DeRose, is more than capable of arguing this motion to the same degree of success. [ 8 ] Courts across the country are recognizing that the right of a client to bring a senior litigator to court does not inherently guarantee that all of that litigator’s costs will be awarded if he or she is successful. [3] There is nothing complex or difficult in the rules which govern the drafting of an affidavit. These straight forward rules are found in

Part 30 of the Rules of Court . The problems with the affidavit were numerous and clear on its face. Any member in good standing of the Law Society of Nunavut would have been qualified to handle this application. It did not require the attendance of a senior civil litigator resident outside Nunavut. Therefore, I decline to award costs in the amount claimed by the respondents. [ 9 ] The respondents, of course, are completely free to engage the services of any lawyer they choose who is licensed to practice in Nunavut.

However, they are not entitled to claim extra costs from the applicant when there are any number of qualified lawyers who live in Iqaluit who could have handled the application. [ 10 ] Even though the affidavits were clearly problematic, between them they spanned more than 50 pages. It was also often difficult for the reader to correlate parts of the affidavits with the relevant exhibits. It took me a long time to work through it. I am sure it took the respondents’ lawyer just as long to work through it in order to prepare their application.

They are entitled to their costs for this time consuming exercise. [ 11 ] The respondents’ costs are adjusted to reflect the fees which might have been charged by a junior lawyer resident in Iqaluit: $10,000 plus GST. B. Issue 2: is this one of those exceptional cases where costs should be ordered to be paid not entirely by the litigant, but shared by its lawyer? [ 12 ] In a civil action costs are generally awarded against the losing party and not against its lawyer.

Costs, though, may be awarded against the losing party’s lawyer in certain circumstances. [4] One example is where the lawyer for the losing party knew, or ought to have known, that his actions were not only outside the rules, but futile. [ 13 ] I found in this case that the affidavits filed by Mr. Brogden were so flawed that it failed entirely to follow the straight forward Rules of Court and laws of evidence.

That conclusion could have been reached by any lawyer upon a cursory review of the document. [ 14 ] Furthermore, on November 30th last year, the respondents offered not to pursue this application to strike the offending paragraphs. Mr. DeRose, to his credit, gave Mr. Brogden a chance to re-submit a properly drafted affidavit. He offered to abandon their application upon receipt of the new document. Nevertheless, Mr. Brogden forced on with this application. He argued in court that the affidavit was fine. When I said to Mr.

Brogden that much of the affidavit was based on inadmissible hearsay, he replied: “I can’t argue against that position”. By defending the indefensible, Mr. Brogden not only wasted valuable court time and resources, he put the respondents to unnecessary effort and expense. He also delayed unnecessarily the progress of his client’s action. [ 15 ] Lawyers have an ethical and professional duty to ensure that the advice they give a client, and the actions they take, are proper.

In other words, every lawyer has a duty to present the case for their client in good faith, according to the Rules of Court and the applicable law; in this case the laws of evidence. An affidavit may be the sworn evidence of the client, but it is the lawyer’s duty to ensure that the affidavit is drafted and submitted according to the rules. In Canada, a lawyer who fails in this basic duty runs the risk that costs shall be imposed against him or her. [5] [ 16 ] If he did not know before he received Mr. DeRose’s email on November 30th, Mr.

Brogden should have then taken a sober second thought about the quality of his affidavits and materials. He failed in his duty both to his client and to the court. This is an appropriate case in which to order the lawyer to contribute to the payment of the costs. [ 17 ] This Court must presume that Mr. Brogden reviewed the respondents’ concerns with his client. Ultimately, the plaintiff client is in control of the litigation. The final decision whether to pursue any particular action or tactic rests with the client. I must presume that the

plaintiff instructed Mr. Brogden to continue to argue against the respondent’s application to strike. Consequently, this Court rules thatAdlair shares equal responsibility with Mr. Brogden for the costs award. IV. CONCLUSION [18] I award the respondents $10,000 costs plus GST. [19] I think it fair to give Mr. Brogden a chance to say why he should not be ordered to share in the payment of the costs. Mr. Brogdenhas ten business days from today to file written submissions concerning this matter.

Otherwise, I shall issue the following order: that thepayment of these costs be shared equally between the plaintiff and its lawyer. $5,000 shall be paid by Adlair and $5,000 shall be paid byMr. Ed Brogden. Dated at the City of Iqaluit this 14th day of September, 2016 ___________________ Justice P. Bychok Nunavut Court of Justice [3] Donovan v. QCRS, 2016 PECA 1 at para 40 – 51, 2016 CarswellPEI 4. [4] Rules of Court, Rule 644. See also: Shum v Mitchell, 2000 ABQB 323, [2000] A.J.

No 522 at para 15; affirmed by Robertson vEdmonton (City) Police Service (#11), 2005 ABQB 499, 2005 CarswellAlta 949; Young v Young (1990), (BC CA) atparas. 81-101, [1990] BCJ No 2254 (QL), affirmed by Young v Young [1993] 4 SCR 3, (SCC).