2012 NBCA 13, 2012 NBCA 13

COURT OF APPEAL OF NEW BRUNSWICK 140-10-CA THOMAS BURNS, HENRY GRANT, LAWRENCE GRAHAM, VICTOR GREER, MIKE HAWKES, GLEN MILLS, BYRON MURPHY and the Estate of ARNOLD PIKE as represented by SHEILA GRAY, Executrix and Personal Representative of the Estate of Arnold Pike (Plaintiffs) APPELLANTS THOMAS BURNS, HENRY GRANT, LAWRENCE GRAHAM, VICTOR GREER, MIKE HAWKES, GLEN MILLS, BYRON MURPHY et la succession d’ARNOLD PIKE, représentée par SHEILA GRAY, exécutrice et représentante personnelle de la succession d’Arnold Pike (Demandeurs) APPELANTS - and - - et - NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW- CANADA), LOCAL 219 and NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW- CANADA) (Defendants) RESPONDENTS SYNDICAT NATIONAL DE L’AUTOMOBILE, DE L’AÉROSPATIALE, DU TRANSPORT ET DES AUTRES TRAVAILLEURS ET TRAVAILLEUSES DU CANADA (TCA- CANADA),

SECTION LOCALE 219, et SYNDICAT NATIONAL DE L’AUTOMOBILE, DE L’AÉROSPATIALE, DU TRANSPORT ET DES AUTRES TRAVAILLEURS ET TRAVAILLEUSES DU CANADA (TCA- CANADA) (Défendeurs) INTIMÉS Burns et al. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada, Local 219 et al.), 2012 NBCA 13 Burns et autres c. Syndicat national de l’automobile, de l’aérospatiale, du transport et des autres travailleurs et travailleuses du Canada (TCA-Canada,

section locale 219 et autre), 2012 NBCA 13 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Court of Queen`s Bench: September 28, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 28 septembre 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 308 Décision frappée d’appel : 2010 NBBR 308 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 24, 2011 Appel entendu : Le 24 mai 2011 Judgment rendered: February 16, 2012 Jugement rendu : Le 16 février 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Robertson The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Richard Counsel at hearing: For the appellants: J. Gordon Petrie, Q.C. Clarence L. Bennett For the respondents: David Mombourquette Daniel Leger Avocats à l’audience : Pour les appelants : J. Gordon Petrie, c.r. Clarence L.

Bennett Pour les intimés : David Mombourquette Daniel Leger THE COURT The main appeal is dismissed. The cross-appeal with respect to the issue of costs at trial is allowed. The respondents are entitled to costs at trial as set out in the reasons of the Court, and to costs on appeal of $3,500. LA COUR L’appel principal est rejeté. L’appel reconventionnel interjeté relativement à la question des dépens afférents au procès est accueilli. Les intimés ont droit aux dépens afférents au procès selon les indications données dans les motifs de la Cour ainsi qu’aux dépens afférents à l’appel qui sont fixés à 3 500 $.

The judgment of the Court was delivered by GREEN J.A. I. Introduction [ 1 ] The eight appellants are former employees of St. Anne-Nackawic Pulp Company Ltd. who worked at the company’s pulp mill in Nackawic, New Brunswick. While employees, they were represented by the respondent National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219, a certified trade union operating under the constitution of the respondent National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada).

The mill was sold and the appellants, all of whom had been long-term employees of St. Anne-Nackawic, were not among those rehired by the new owners. The appellants took action against both Local 219 and the national union, arguing the respondents had failed in their duty of fair representation. Following a trial spread over several days, the claim was dismissed with no award of costs. The former employees now appeal the trial judge’s decision, and the respondents cross appeal on the issues of costs and damages.

For the reasons which follow, I would dismiss the appeal, and allow the cross-appeal with respect to costs. II. Background [ 2 ] St. Anne-Nackawic declared bankruptcy on September 14, 2004, and ceased operations at its pulp mill, which had been the most significant source of employment in the area. Among those directly affected were approximately 300 unionized workers represented by the respondents. [ 3 ] There was an immediate effort to find a purchaser for the mill, and Tembec Industries Inc. soon expressed an interest in acquiring the operation.

Officials from Tembec entered into negotiations with the respondents and were able to reach a tentative agreement. [ 4 ] A meeting of union members was held in December, 2004, to discuss the terms of the tentative agreement. The membership voted 98% in favour of the agreement, but in early 2005 Tembec announced it would not be proceeding with the purchase. [ 5 ] Efforts to reopen the mill continued, and Tembec announced it had entered into a joint venture agreement with another company, Aditya Birla Group, under the name AV Nackawic Inc.

This new entity was successful in negotiating the purchase. [ 6 ] The union membership held another ratification meeting on August 8, 2005, to consider a new tentative agreement, which was “very similar” to that negotiated with Tembec and previously accepted. Again, the vote in favour of acceptance was overwhelming. [ 7 ] The provision in the collective agreement central to this dispute is found in

Article 3.09: 3.09(a)(ii) The Company [AV Nackawic Inc.] does not have any obligation to hire any of the employees/former employees of St. Anne Nackawic Pulp Company Ltd. However, the hiring committee will review applications from all former employees and give them priority. Moreover, their seniority with the previous employer will be recognized for the purpose of vacations and progression within the mill […]. [ 8 ] AV Nackawic began operating the mill on January 15, 2006. Although the new owners hired approximately 225 of the former unionized employees, the appellants were not among that number. III.

Issues [ 9 ] The grounds of appeal set out by the appellants attribute the following errors to the trial judge: (1) misunderstanding and misapplying the duty of fair representation; (2) failing to address or ignoring the evidence of certain witnesses, and failing to consider the contradictory evidence of another; (3) failing to recognize the significance of the concept of seniority and qualifications; and (4) failing to consider certain documentary evidence. IV. Analysis

A. Reliance [10] The duty of fair representation is analyzed by George W. Adams in Canadian Labour Law, 2nd ed. (Toronto:Canada Law Book, 1993): The concept of a duty of fair representation, in which a trade union in its capacity as bargaining agent has some obligation to theemployees it represents in the bargaining unit, was developed first in the United States courts and later the National Labor RelationsBoard. In Canada, a number of jurisdictions relying on this American experience have expressly codified the duty in their collectivebargaining statutes.

Very limited involvement of Canadian courts in the enforcement of collective agreements has prevented anysignificant opportunity for judicial involvement along the American lines. Not all Canadian labour law statutes, however, explicitlyprovide for the duty and, therefore, the early American and some Canadian developments continue to have a degree of relevance. Various theories justify the implication of a duty of fair representation on the part of trade unions including:

(1) Employees can be described as third-party beneficiaries under a collective agreement between their trade union and the employer;

(2) The trade union can be regarded as the agent of the employees who as principals have their personal contracts of employmentincorporate the terms agreed upon in the collective agreement; and

(3) Employees can be considered to be the cestuis que trust and, therefore, are owed a fiduciary duty of fair representation by the tradeunion which is the equivalent to the trustee of a trust. [13.10 & 13.20] [11] In United Brotherhood of Carpenters and Joiners of America, Local 1023 et al. v. Laviolette et al. (1998), (NB CA), 199 N.B.R. (2d) 270, [1998] N.B.J. No. 130 (C.A.) (QL), Mr. Laviolette, a union member, claimed his unionand its business agent failed to properly represent him with respect to hiring practices and in refusing to process a grievance.

Writing forthe Court, Ryan J.A. commented on the duty of fair representation within this province: To what Deschênes J. [as he then was], said, I would add or emphasize: 1. It is indisputable that the [Industrial Relations] Act lacks any language imposing a duty of union fair representation. 2. In New Brunswick, there is a common law duty of fair representation, enforceable through litigation.

In some other provinces,such a duty is included in their legislation. [para. 20] [12] Although the Court allowed the appeal and set aside the decision of the Court of Queen’s Bench, the basis forthat disposition having been a lack of jurisdiction, Ryan J.A. did quote with approval the application judge’s description of the duty offair representation: The duty of fair representation cast upon a union, as exclusive bargaining agent, is a duty not to engage in a certain type of conduct suchas discrimination, arbitrariness, bad faith or serious negligence in the representation of employees of the bargaining unit in thenegotiation and administration or enforcement of the collective agreement.

The duty, although expressed in negative terms, is a dutywhich relates to the quality of a union’s representational functions when engaged in collective bargaining with an employer or whenadministering or enforcing the resulting collective agreement. [para. 17]

[13] In the present case, the trial judge recognized the existence of a duty of fair representation owed by therespondents to the appellants: I accept the testimony […] when they state that this was the best deal they could get. I accept also that the union did allthey could to push the company to hire by seniority. However, it is recognized that the union [...] owed the Plaintiffs and allmembership a duty of fair representation and under these circumstances I find they did fairly represent the members of Local 219. Themajority of previous mill employees were hired.

The union does not owe a greater duty to an individual member; it owes a duty of fairrepresentation to the entire group. The duty of fair representation has been discussed and followed in a number of cases over the years (see Fisher v. Pemberton (1969) (BC SC), 8 D.L.R. (3d) 521 (B.C.S.C.); and Romard v. Canadian Union of Public Employees, (NSSC), [2000] N.S.J. No. 284).

In Romard (supra) [modified pursuant to erratum released on February 7, 2011] Cacchione, J. at para 26said, “…the duty of fair representation is a duty owed by the Union as a judicial body to its members.” It follows in the case at bar thatboth the Local and national union owed a duty of fair representation to its members, and the Plaintiffs were all current union members. [paras. 19-20] [14] The appellants maintain their union breached the duty of fair representation by misleading or misinformingthem as to the manner in which AV Nackawic would hire its new workforce.

They contend their union leadership failed to properlyexplain the implications of

Article 3.09, leading them to believe this provision would not apply to them, but only to “new hires”. Theyfurther contend they understood hiring by the new owner would be conducted on the basis of seniority, and by that criterion all of themshould have been offered positions. [15] For their part, the respondents argue they met their duty to their members, and rely upon the decisions of theSupreme Court of Canada in Canadian Merchant Service Guild v. Gagnon, (SCC), [1984] 1 S.C.R. 509, [1984] S.C.J.No. 24 (QL); Gendron v.

Supply & Services Union of the Public Service Alliance of Canada, Local 50057, (SCC),[1990] 1 S.C.R. 1298, [1990] S.C.J. No. 55 (QL); and Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207. [16] One passage of Gendron is particularly instructive, in which L’Heureux-Dubé J. stated: […] In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as itsdecision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevantconsiderations.

The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation andmethod used to make this choice that may be objectionable. [para. 66] [17] The “improper motives” in question were summarized as follows: The union must not be actuated by bad faith in the sense of personal hostility, political revenge, or dishonesty. There can be nodiscrimination, treatment of particular employees unequally whether on account of such factors as race and sex … or simple, personalfavoritism.

Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory matter. Instead, itmust take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the variousrelevant and conflicting considerations. [para. 65] [18] In determining the validity of the appellant’s claim, two central questions must be answered. First, did theunion fail to inform its members of the existence of

Article 3.09 prior to the ratification vote? Second, did the union mislead theappellants to have them believe they would be rehired on the basis of seniority? The trial judge considered these questions and madecritical findings as follows:

Eventually, the Province of New Brunswick agreed to winterize the mill, after consultation with the union and other interested parties. Mr. Hargrove [the national union president] testified that his goal was to get the mill “up and running”. He indicated that concessionsare a reality. There were concessions made by both the owner and the union. The new owner was adamant that they would hire theirown work force and on that issue they would not budge. The only concession was that the former work force would be given priority,and they were.

The Local and National union disagreed in principle with failing to hire by seniority, but the best they could obtain asfurther concessions was union representation on the interview panel, bringing in union members by seniority to be tested andinterviewed, and seniority after hiring with regard to vacations and progression. I accept the evidence of Mr. Hargrove on the issue ofseniority. I accept that neither Mr. Hargrove nor the executive of the Local union promised a return to work for the union members basedon seniority.

I accept that the intent was to keep pushing for hiring by seniority, but I also accept no promises were made and that amplematerial was provided at the meetings for the union members to understand this issue. It would be nonsensical to test, interview andevaluate former workers if they were to “march back as they left”. The evidence clearly supported that no guarantee of employment byseniority was promised or even suggested. [para. 18] [19] Having considered all the evidence before her, the trial judge reasoned: The next question is did the Defendants breach the duty of fair representation to these Plaintiffs?

I find that they did not. The union wasfaced with a grave situation. They did what they had to do to get the mill open for the good of the entire group. They held meetings andthey made the information available. The agreement was clear with regard to hiring by seniority. For this union to be held liable, theevidence would have to establish that the union acted in an arbitrary, discriminatory, negligent or hostile manner in its representation ofits members. Quite the opposite occurred. They did not act in bad faith toward the members.

In fact they made some concessions for thegood of the entire Local to get the mill “up and running”. It was in the best interest of all members that a collective agreement beratified. Bad faith and oppressive conduct both involve oppressive conduct on the part of the union (see Noël v. Société d’energie de laBaie James, 2001 SCC 39 , [2001] S.C.J. no. 41 (Q.L.). The evidence disclosed that neither the Local nor the National executiveacted oppressively toward the Plaintiffs. In my view they used their discretion properly and they did not exceed what was reasonable inthose dire circumstances.

Eventually about 225 of the union members were hired by AV Nackawic. [para. 21] [20] The evidence does disclose there existed some confusion as to how the various players understood hiring bythe new owner would take place. That said, there should have been no confusion as to the meaning of

Article 3.09(a)(ii). The provisionis clear and unequivocal: AV Nackawic was under no obligation whatsoever to hire any of the former employees. As for the seniority(with St. Anne-Nackawic) of those former employees who would be rehired, it was to be recognized “for the purpose of vacations andprogression within the mill”. [21] I find no merit in any of the grounds of appeal set out by the appellants, and see no basis upon which tointerfere with the trial judge’s decision. Specifically, I have not been persuaded the trial judge erred in her

interpretation or application ofthe duty of fair representation. There was an evidentiary foundation for her findings, and I have not been convinced she ignored or failedto consider any of the oral or documentary evidence. Finally, there was no failure on the part of the trial judge to recognize thesignificance of the concept of seniority and qualification, and certainly no error of law on her

part in this regard. B. Cross-Appeal Re Costs [22] This Court has considered the issue of costs, and the deference owed to trial judges with respect to same, inseveral recent cases. In Carson Construction

(1999) Ltd. v. City of Moncton, 2012 NBCA 9, the Court stated: […] It is well established that this Court will show considerable deference on costs, but that deference is not absolute. Two recentdecisions have explored the issue. In Townsend-Grant v. Grant, 2011 NBCA 12, 369 N.B.R. (2d) 202, Bell J.A. stated as follows: The trial judge is vested with a very broad discretion in relation to the assessment of costs. The exercise of that discretion should not beinterfered with unless manifestly wrong: Saint John Regional Hospital v. Comeau, 2001 NBCA 113, 244 N.B.R. (2d) 201; Ms. P.H. v.Mr.

P.H., 2008 NBCA 17, 328 N.B.R. (2d) 245. In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71,[2003] 3 S.C.R. 371, LeBel J. stated:

The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules ofcosts should be followed unless the circumstances justify a different approach. It is trite law that costs normally follow the cause. Should a trial judge decide to depart from that rule he or she is required to justify thedeparture: Dupuis v. Moncton (City), 2005 NBCA 47, 284 N.B.R. (2d) 97, para. 40.

In Orkin, The Law of Costs (Toronto: Canada LawBook Ltd., 1965), the author states: The fundamental principles of costs as between party and party is that they are given by the court as an indemnity to the person entitledto them; they are not imposed as punishment on the person who must pay them. Party and party costs are in effect damages awarded tothe successful litigant as compensation for the expense to which he has been put by reason of the litigation. Orkin’s observations have, of course, been expanded upon in Rule 59.02 of the New Brunswick Rules of Court.

In fixing an award ofcosts under that Rule, trial judges may consider, in addition to success or failure, the amount claimed and recovered, the complexity ofthe proceedings, the importance of the issues, the conduct of any party which tends to lengthen the proceedings, and any improper orvexatious conduct. The second decision I refer to is Doucet and Dauphinee v. Spielo Manufacturing Incorporated and Manship, 2011 NBCA 44, [2011]N.B.J. No. 153 (QL), in which Robertson J.A. wrote: No one needs reminding of the principle that cost orders are owed deference.

Appellate interference is not warranted unless it isestablished that the trial judge erred in principle, or fixed costs that are so inordinately high or so low as to be manifestly wrong. Withrespect to the deference issue see Becker et al. v. Cleland's Estate et al. (1981), (NB CA), 35 N.B.R. (2d) 542, [1981]N.B.J. No. 198 (C.A.) (QL); Boyle v. Atherton, Atherton Estate and Eureka Holdings (1983), (NB CA), 51 N.B.R.(2d) 151, [1983] N.B.J. No. 345 (C.A.) (QL); Daigle and Workers' Compensation Board (N.B.) v.

Cape Breton Crane Rentals Ltd.,Canadian Indemnity Co. and Frechette (1987), (NB CA), 91 N.B.R. (2d) 189, [1987] N.B.J. No. 1019 (C.A.) (QL);Proenca v. Squires Home Improvements & Total Renovations, Perry and Melanson, 2001 NBCA 45, 252 N.B.R. (2d) 274; Saint JohnRegional Hospital v. Comeau, 2001 NBCA 113, 244 N.B.R. (2d) 201; and Province of New Brunswick v. Stephen Moffett Ltd., 2008NBCA 9, 326 N.B.R. (2d) 242; and Townsend-Grant v. Grant, 2011 NBCA 12, [2011] N.B.J. No. 33 (QL).

In the present case, the application judge chose to deviate from the principle that costs follow the cause, and made an award of costs infavour of the unsuccessful party. In his decision, he explains his reasoning as follows: The issue of costs on this Application has caused me some concern. It is my view that the issue of the use of the property as a rockcrushing operation should have been squarely put before the Court by the City on its first Application. In the face of the ‘stop’ order ofJune 9, 2006 it was clearly the central issue.

Yet the City went to the Court with the request that the Company be ordered to cease to usethe property as a construction/contractor’s yard, a repair and maintenance facility and an office. In my view that request was correctly refused upon recognition of the company’s right to such a non-conforming use. The result was that the City brought this second Application and I can see no excuse as to why it was made necessary. The processcaused unnecessary costs and unwarranted demand on the time of the parties, other interested persons and the Court.

I see this case as an exception of the general rule that costs follow the cause and I have decided that costs should be awarded against theCity on this Application even in the face of its apparent success. […] The respondent shall have costs against the Applicant which I set in the amount of $5,000.00.

It is my view that the application judge was entirely reasonable in determining the circumstances of this case warrant a differentapproach to the awarding of costs. He exercised his discretion judicially and justified his decision with clear, concise reasons. I wouldaccord deference to his decision, and not interfere. [Citations omitted.] [paras. 26-29] [23] As noted above, the Court accords deference to trial judges on the issue of costs, but the deference is notabsolute.

In Carson, the application judge deviated from the norm and not only rendered a decision which did not award costs to thesuccessful party, but used his discretion to award costs against the successful party. The decision was upheld on appeal. Carson differsfrom the case before us on a critical point: the application judge in Carson gave a clear reason for deciding as he did, and his exercise ofdiscretion was defensible.

In the present case, the trial judge’s reasons for refusing to award costs to the successful party are found in thefollowing paragraphs of her decision: The issue of damages is also difficult to address because only two Plaintiffs testified as to the impact on their lives of not being hired byAV Nackawic. Counsel for the Plaintiffs suggested that they could receive one month’s pay for each year of service as in a wrongfuldismissal action. Provisionally, that is likely a possible award and more in line with such awards than the damage calculations found inthe Plaintiff’s pre-trial brief at para 102.

Given the above reasons, the Plaintiff’s claim is dismissed and under these circumstances no costs are awarded. [paras. 24-25] [24] From the above passages, I deduce the trial judge was unwilling to award costs to the successful party becausethe issue of damages is “difficult to address”. Surely, though, the onus is on the plaintiffs to establish their loss and, in any event, suchdifficulty is not a ground for refusing to award costs to the successful party.

In the present case, the appellants failed to identify anyreasons for derogating from the general rule and, therefore, the trial judge’s refusal to award costs qualifies as an error of law (see AcadiaMarble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), (NB CA), 205 N.B.R. (2d) 358[1998] N.B.J. No. 412 (C.A.) (QL) (per Drapeau J.A., as he then was)). [25] This leaves us to consider whether the matter of costs at trial should be remitted to the trial judge or whetherthis Court should rule on the matter.

For the sake of finality, I am prepared to address the issue through the application of Rule 59.09(1)(

b) of the Rules of Court, which requires a determination with respect to the amount involved for purposes of applying Tariff “A”. TheRule provides that where the main issue involves a monetary claim which is dismissed, the amount involved is an amount determinedhaving regard to the following factors: (1) the amount of damages provisionally assessed; (2) the amount claimed; (3) the complexity ofthe proceeding; and (4) the importance of the issues. In truth, the trial judge made no provisional assessment of damages.

She simplyacknowledged that the appellants’ provisional claim to damages based on one month’s pay for each year of service was “likely a possibleaward”. Not so according to the jurisprudence of this Court. In Savoie v. Chiasson, 2000 NBCA 56, 231 N.B.R. (2d) 378, at para. 22,Drapeau J.A. (as he then was) held: I am of the view that Landry, J. erred in principle when he set the notice period to which Mr. Savoie was entitled on the basis of aformula whereby a one-month notice must be given for every year of service. This approach was emphatically rejected by this Court,particularly in Bishop v.

Carleton Co-operative Ltd. (1996), (NB CA), 176 N.B.R. (2d) 206 (C.A.) at pp. 218-19,para. 12 and in [Bramble v. Medis Health and Pharmaceutical Services Inc., (NB CA), [1999] N.B.J. No. 307, 214N.B.R. (2d) 111, at paras. 40-42. [26] We must next consider the $4.7 million amount claimed by the appellants at trial and the complexity of theproceeding when measured against the importance of the issues. There was a five-day trial at which seven witnesses testified.

The claimof unfair union representation in the sense of a failure to fully or properly inform the union membership with respect to the proposedagreement as it applied to rehiring of former employees falls within the category of “important”. Having regard to these factors and therecord that is before us, I would fix the amount involved at $2 million. Applying Tariff “A” I would adopt Scale 3 with respect to thefirst $100,000 ($7,375) and apply a percentage of 1% to the excess ($1.9 million x 1% = $19,000). In brief, I would award trial costs of$26,375, plus reasonable disbursements

C. Cross-Appeal Re Damages [ 27 ] In light of the above reasoning, there is no need to comment upon this point. V. Disposition [ 28 ] I would dismiss the appeal, and allow the cross-appeal with respect to costs at trial. I would hold the appellants jointly and severally liable for trial costs of $26,375, plus reasonable disbursements. As well, the respondents should be entitled to one set of costs on appeal, which I would fix at $3,500. Once again, I would hold the appellants jointly and severally liable for these costs. ______________________________ BRADLEY V. GREEN, J.A. WE CONCUR: _____________________________ J.T. ROBERTSON, J.A. _____________________________ J.C. MARC RICHARD, J.A.