JD1HI v Budden, 2021 NUCA 5

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: JD1HI v Budden, 2021 NUCA 5 Date: 20210311 Docket: 08-18-007-CAC Registry: Iqaluit Between: JD1HI, JD2HI, JD3HI, JD4HI, JD5HI, JD6HI, JD7HI, JD8HI, JD9HI, JD10HI, JD11HI, JD12HI, JD13HI, JD14HI, JD15HI, JD16HI, JD17HI, JD18HI, JD19HI, JD20HI, JD21HI, JD22HI, JD23HI, JD24HI, JD25HI, JD26HI, JD27HI, JD28HI, JD29HI, JD30HI, JD31HI, JD32HI, JD33HI, JD34HI, JD35HI, JD36HI, JD37HI, JD38HI, JD39HI, JD40HI, JD41HI, JD42HI, JD43HI, JD44HI, JD45HI, JD46HI, JD47HI, JD48HI, JD49HI, JD50HI, JD51HI, JD52HI, JD53HI, JD54HI, JD55HI, JD56HI, JD57HI, JD58HI, JD59HI, JD60HI, JD61HI, JD1HII, JD2HII, JD3HII, JD4HII, JD5HII, JD6HII, JD7HII, JD8HII, JD9HII, JD10HII, JD11HII, JD12HII, JD13HII, JD14HII, JD15HII, JD16HII, JD17HII, JDI8HII, JD19HII, JD20HII, JD21HII, JD22HII, JD23HII, JD24HII, JD25HII, JD26HII, JD27HII, JD28HII, JD29HII, JD30HII, JD31HII, JD32HII, JD33HII, JD34HII, JD35HII, JD36HII,JD37HII, JD38HII, JD39HII, JD40HII, JD41HII, JD42HII, JD43HII, JD44HII, JD45HII, JD46HII, JD47HII, JD48HII, JD49HII, JD50HII, JD51HII, JD52HII, JD53HII, JD54HII, JD55HII, JD56HII, JD57HII, JD1HIII, JD2HIII, JD3HIII, JD4HIII, JD1HIV, JD2HIV, JD1A, JD2A, JD3A, JD4A, JD1HUK, JD2HUK, JD3HUK, JD4HUK, JD5HUK, JD6HUK, JD7HUK, JD8HUK, JD9HUK, JD10HUK, JD11HUK Not Parties to Appeal (Plaintiffs) - and - Geoffrey E.

Budden and Stuart A. Morris and Geoffrey E. Budden and Stuart A. Morris cob. as Budden Morris Law Offices, “Budden Morris”, or “Budden, Morris Barrister & Solicitors,” or “Budden, Morris Law Offices of Mount Pearl, Newfoundland and Labrador” Respondents (Defendants) - and - Ahlstrom Wright Oliver & Cooper LLP Appellant (Third Party)

Restriction on Publication By Court Order, information identifying the plaintiffs shall not be published orbroadcast or transmitted in any way. _______________________________________________________ The Court: The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Jolaine Antonio The Honourable Mr.

Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment on Costs _______________________________________________________ Memorandum of Judgment on Costs _______________________________________________________ The Court: [1] The parties have applied for directions on the costs consequences of the decision reported as JD1HI v Budden, 2020 NUCA3. [2] The issue before the case management judge was whether a third party notice should be struck. The case management judgedeclined to strike it, but that decision was reversed on appeal, and the third party notice was struck out.

The third party appellant wasaccordingly the successful party. Because the litigation respecting the validity of the third party notice should be regarded as a discretestep in this litigation, costs should be set and payable forthwith. The successful third party is entitled to the costs of the appeal, and thecosts of the appearances before the case management judge on October 23, 2016, March 9, 2017, November 8, 2017, and January 16,2018.

Any other appearances should be dealt with as components of the general costs of the action, and reserved for the casemanagement or trial judge. [3] The fact that the third party claim was defended by the third party’s insurers is irrelevant to the issue of costs, as the insurersare subrogated to the position of the third party: Armand v Carr, (SCC), [1927] SCR 348; Piikani Nation v RaymondJames Ltd, 2018 ABCA 275 at para. 13; Wiskerke v Rice, 1998 ABQB 159, 215 AR 346. [4] The third party notice related only to HST alleged to have been improperly deducted.

The quantum of the HST is unknown.In the circumstances, and to reflect the complexity of the issues, costs of the appeal should be assessed on Column 4 of

Schedule B ofthe Rules of the Nunavut Court of Appeal Respecting Civil Appeals, with a fee of $2,700 for this application to settle costs. Costs in thetrial court should be assessed as complex motions on double Column 6 of

Schedule A of the Rules of the Nunavut Court of Justice. [5] Because the third party notice purported to add the plaintiffs’ lawyers as third parties, issues arose respecting therepresentation of the plaintiffs. Since retaining counsel on the appeal to represent all of the 139 plaintiffs was impractical or impossible,the Court appointed an amicus curiae. The need for the amicus curiae arose from the invalid attempt to third party the plaintiffs’lawyers, and his fees are a proper subject of the award of costs. However, given that the underlying issue respecting the continued

representation of the plaintiffs would have arisen with or without the issuance of the third party notice, some allocation of the amicus curiae ’s fees is appropriate.

Accordingly, the respondents are directed to pay 75% of the fees of the amicus curiae with respect to the appeal as a reasonable disbursement . [ 6 ] Entitlement to travel expenses for out-of-town counsel is governed by the “unavailability of local counsel” test: R. 648(4); Camillus Engineering Consultants Ltd v Fort Simpson (Village) , 2005 NWTSC 25 at para. 22 ; Allen (Next Friend of) v University Hospitals Board , 2006 ABCA 101 at paras. 2-4 , 59 Alta LR (4th) 1, 384 AR 23.

Given the limited size of the civil bar in Nunavut, and the issues that arose in these proceedings, it was reasonable and appropriate for the third party and its insurers to retain out-of-town counsel. The reasonable travel expenses of counsel are accordingly a proper disbursement. [ 7 ] Any issues that arise with respect to the exact quantum of costs, or with respect to disbursements, can be taken before the taxing officer for resolution. Counsel are encouraged to resolve any outstanding issues within 60 days without further need for directions.

Written submissions February 4, 23, 2021 Memorandum filed at Iqaluit, Nunavut this 11th day of March, 2021 Slatter J.A. Authorized to sign for: Antonio J.A. Feehan J.A. Appearances: T. Kruger for the Respondents J.P. Rossall, Q.C. for the Appellant