Warren v. Canadian Amateur Football Association, 2019 NSSC 219

SUPREME COURT OF Nova Scotia Citation: Warren v. Canadian Amateur Football Association , 2019 NSSC 219 Date: 20190704 Docket: 478787 Registry: Halifax Between: Jason Kristian Warren Applicant v. Canadian Amateur Football Association Respondent Judge: The Honourable Justice Peter P. Rosinski Heard: July 4, 2019, in Halifax, Nova Scotia Counsel: Nasha Nijhawan, for the Plaintiff Sean Kelly, for the Defendant By the Court: Introduction [ 1 ] A contested hearing is set for September 2019. Mr. Warren claims to be unlawfully treated by Football Canada and Football Nova Scotia.

He discontinued the proceeding against Football Nova Scotia on February 25, 2019. Football Nova Scotia claims $25,000 in costs as against him pursuant to CPR 9.06. It says that costs should assessed and be paid by him now, and that Football Nova Scotia should not have to wait until the hearing of the matter between Mr. Warren and Football Canada in September 2019. [ 2 ] Mr. Warren argues that any decision regarding costs involving Football Nova Scotia should be deferred until the dispute between Mr. Warren and Football Canada is determined in September 2019.

He says in the exceptional circumstances of this case it is very difficult to assess the necessity and reasonableness of the costs claimed by Football Nova Scotia, without knowing the context of claimed costs incurred by Football Canada, and what are the corollary costs of Football Canada. [ 3 ] This decision will resolve the competing positions regarding the timing of the hearing regarding the costs’ fallout from the discontinuance vis-à-vis Football Nova Scotia. I am persuaded that the costs decision should be deferred and dealt with by the judge hearing the merits of the Application involving Football Canada.

Background [ 4 ] Mr. Warren was a football coach authorized by the Canadian Amateur Football Association (“Football Canada”) and the Football Nova Scotia Association (“Football Nova Scotia”) since 2013, and specifically so in 2018. A complaint was made in relation to his conduct arising from events beginning on January 18, 2018. On February 7, 2018 he was suspended for three years from coaching by the President of Football Canada. In response, previous counsel on his behalf filed an Application in chambers against Football Canada on April 10, 2018, which was discontinued on July 30, 2018 .

On that same date present counsel on his behalf filed an Application in Court against Football Canada and Football Nova Scotia. Therein, he noted that Football Canada has no individual members, but rather that all members of Football Canada are provincial or territorial amateur football associations.

Football Nova Scotia is one such member. [ 5 ] He alleged that his written employment contract (for the period December 16, 2016 – March 31, 2018) was with Football Nova Scotia, and that he was a volunteer coach with Football Canada in the 2017 – 18 season, which gave him “registered participant” status under Football Canada bylaws and that they, the policy and rules of Football Canada, form the basis of a contractual relationship between he and Football Canada.

[ 6 ] He based his claims against Football Canada and Football Nova Scotia upon breach of contract, including inter alia an implied duty of good faith and fair dealing [1] . [ 7 ] Between September 17, 2018 and October 17, 2018 affidavits of documents [“ADD”] were disclosed between the parties.

On October 17, 2018 Justice Arnold amended the earlier Order of Justice Boudreau, in response to a Motion for Directions before her, and he specifically ordered: “the Applicant will not be required to take any steps in the litigation between October 19, 2018 and January 2, 2019”. [ 8 ] A second supplementary ADD was provided by Football Nova Scotia January 11, 2019. Unsworn Answers to Interrogatories were provided by Football Nova Scotia (Karen Ouellette – Executive Director of Football Nova Scotia; and Louie Velocci – Director of Football Canada and Football Nova Scotia) on January 11, 2019.

A third supplementary ADD was provided by Football Nova Scotia on January 18, 2019; and one on behalf of Football Canada on February 1, 2019. Discoveries were to take place on February 26 – 27, 2019. [ 9 ] Without-prejudice discussions took place on February 22, 2019, resulting in Mr. Warren’s decision to file a Notice of Discontinuance in relation to Football Nova Scotia on February 25, 2019 [2] . The hearing between Mr. Warren and Football Canada is presently set for September 25, 26, 30 and October 1, 2019. [ 10 ] Football Canada is represented by Grant Machum, of the Halifax offices of Stewart McKelvey.

Football Nova Scotia is represented by Sean Kelly of the Halifax offices of Stewart McKelvey. Position of the parties regarding the motion by Football Nova Scotia for costs against Mr. Warren not being deferred to the hearing in September 2019 Football Nova Scotia/Football Canada [ 11 ] Football Nova Scotia addressed the Applicant’s request for a deferral of the hearing of the costs issue in its brief filed July 3, 2019 at about 4 PM.

It says the costs ruling should not be deferred for the following reasons [citing the following cases - Rioga v Mockle , 2005 ABQB 425 ; Manitoba Hydro Electric Board v John Inglis Co ., 1998 CarswellMan 497 (QB) and Communications, Energy and Paperworkers Union of Canada, local 141 v Bowater Mersey Paper Company Ltd., 2011 NSSC 423 at para. 31 ; and Orkin on Costs (second edition) paragraphs 209.1 – 209.3]: 1-as a matter of principle, a determination on costs should not be deferred simply because the same firm represented both parties [that is, the Respondents in this case]; 2-there is no principled reason to depart from the presumption under Rule 9.06(1) that the Applicant is responsible for Football Nova Scotia’s costs, in an amount to be determined by this court; and 3-determining the appropriate costs award at this stage would do justice between the parties (i.e.

Football Nova Scotia and Mr. Warren). [ 12 ] Football Canada filed a separate brief simultaneously with Football Nova Scotia: “As Football Canada is not a party to this motion, it has taken no position on the costs being sought by Football Nova Scotia in relation to its discontinuance as a party.… However, we understand upon reading the Applicant’s submissions that the Applicant has raised the possibility of seeking either a Bullock or Sanderson order, depending on the outcome of the hearing on the merits, and requested deferral of the costs’ determination against Football Nova Scotia on that basis.

As the potential for such orders directly impacts Football Canada, we are providing limited submissions in response… In the event that Football Canada is unsuccessful on the merits, its position will be that neither a Bullock nor a Sanderson order is appropriate in this case, because it was not reasonable for the Applicant to join Football Nova Scotia as a party… Even if that threshold could be met, Football Nova Scotia says it is clear from consideration of the applicable factors that a Sanderson order would not be justified in this case.

As a result, there is no uncertainty as to whether the Applicant will be responsible for costs against Football Nova Scotia… Here, the evidence is clear that it would not be just and fair in the circumstances to require Football Canada to pay the costs of Football Nova Scotia directly, for the following reasons:

A) the Respondents’ defences to the Application are not based on shifting responsibility to each other;

B) there is absolutely no basis upon which to say that Football Canada caused Football Nova Scotia to be added as a party;

C) while the causes of action arise largely from the same factual matrix, the Applicant alleged a separate basis for liability as between the two parties; and

D) no evidence has been adduced regarding the Applicant’s ability to pay, which is the default consequence of his choice to discontinue under the Civil Procedure Rules. [ 13 ] As a result, Football Canada says that there is no basis for [a] Sanderson order in any event, and so ordering costs, at this time, in relation to Football Nova Scotia’s discontinuance as a party, does not risk a resulting in an injustice between the parties.” It cites Giffin v City of Summerside , 2010 PECA 15 and specifically its acceptance of the factors relevant to a Sanderson order articulated in Moore v Wienecke , 2008 ONCA 162 at para. 31 .

Generally whether a Sanderson order would be fair and just will depend on whether: the defendants at trial tried to shift responsibility onto each other, as opposed to concentrating on meeting the plaintiff’s case; the unsuccessful defendant caused the successful defendant to be added as a party; where there are multiple causes of action they were independent of each other; in other cases if there is reference to ability to pay. Mr.

Warren [ 14 ] He seeks that the order for costs of the discontinuance be determined at the conclusion of the hearing on the merits. [ 15 ] He points out that the Respondents are jointly represented by one law firm, have each filed very similar responses to his Application, acted in virtual unison throughout, and that their legal costs prior to the discontinuance appear to, and likely do, overlap substantially. [ 16 ] He questions the substantial lump sum $25,000 costs (in relation to claimed actual legal fees incurred by Football Nova Scotia of $53,799-see affidavit of Annie Gray) plus $864.10 disbursements, claimed by Football Nova Scotia as not well supported by the evidence (i.e. no particularization of the $53,799 amount was provided, making the necessity and reasonableness of claimed fees billed difficult to ascertain generally, and specifically as between Football Nova Scotia and Football Canada).

This real concern about the reliability of the basis for those claimed costs, is better scrutinized by the court at the end of the hearing on the merits. Since there is no corollary evidence from Football Canada presented as to its costs between July 30, 2018 and February 25, 2019, the court is unable at this time to compare the amounts expended overall with those expended on behalf of each Respondent.

Why it is appropriate to defer the costs hearing regarding the discontinuance to the merits hearing [ 17 ] While the Respondents identify some arguable reasons why discontinuance costs should be determined now and not later, they have not identified any injustice, other than the mere passage of time, associated with deferring that determination to the merits hearing. Moreover, the somewhat exceptional circumstances here make it in the interests of justice to adjourn the discontinuance costs hearing to the time of the merits hearing.

Among those considerations are: 1. that Football Canada and Football Nova Scotia are both represented by Stewart McKelvey (albeit by separate counsels of record). Presumably Stewart McKelvey must have satisfied itself that there was no sufficient identifiable, and insurmountable conflict of interest to do so in these circumstances. That suggests that the interest of Football Canada and Football Nova Scotia dovetail.

Their respective Notices of Contest filed on the same date (August 21, 2018), while not identical, certainly reflect wording and positions that are noticeably similar-notably their list of witnesses proposed are: for Football Nova Scotia (Louie Velocci, Karen Ouelette and Chris Valardo) and for Football Canada (Louie Velocci, Chris Valardo, Kim Wudrick, and Shannon Donovan regarding “circumstances leading to the suspension and subsequent events”).

In the affidavit of Annie Gray filed June 18, 2019, filed in support of the fees claimed to be incurred by Football Nova Scotia, she states in paragraph: “I am an associate with the law firm Stewart McKelvey. In this capacity I am assisting G Grant Machum, counsel of record for Football Nova Scotia Association… and Sean Kelly, counsel of record for the Canadian Amateur Football Association…”; 2. Mr. Warren arguably was unable until he had full disclosure from both Football Nova Scotia and Football Canada, to determine more precisely whether he should discontinue his claim as against Football Nova Scotia.

If so, which seems reasonable, it goes to whether it was reasonable for him to initially include Football Nova Scotia, and to whether he was diligent in discontinuing against Football Nova Scotia when he did; 3. while a consideration of a Sanderson order would necessarily involve Football Canada, and the certainty of such an order may be debatable now, it is premature to presently try to reliably assess that likelihood; whether, and to what extent, the claimed legal costs of Football Nova Scotia were truly incurred solely by Football Nova Scotia in these exceptional circumstances, cannot really be assessed at this time without corresponding evidence regarding Football Canada’s claimed legal costs; 4. although there was little evidence presented about Mr.

Warren’s financial means, I infer that they were relatively modest, and that if he had to pay $25,000 at this time to Football Nova Scotia, it could have a disabling effect on his ability to effectively carry on with the litigation against Football Canada, and could even prevent him from presenting his case at a hearing on the merits; 5. there was no evidence presented by Football Nova Scotia of any prejudice to it by having to wait until the conclusion of the hearing on the merits, to receive the appropriate amount of reimbursement for the application having been discontinued against them on February 25, 2019.

Conclusion [ 18 ] It is in the interests of justice to defer the discontinuance costs hearing to the time of the hearing of the merits of the application. There is no persuasive reason to forge ahead now and determine the discontinuance costs, whereas there are persuasive reasons not to forge ahead now. [ 19 ] Each party will bear its costs in relation to the time and effort expended on the herein motion for deferment. Rosinski J [1] Recently the Supreme Court of Canada has granted leave in two matters involving the duty of good faith and honest performance: CM Callow Inc. v Zollinger , 2018 ONCA 896 - [2019] SCCA No. 13; Vancouver V. Wastech Services Ltd, 2019 BCCA 66 , [2019] SCCA No. 123