2017 NUCJ 8, 2017 NUCJ 8

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Sese v. Valupharm Drugs et al., 2017 NUCJ 8 Date of Judgement: 2017-03-28 File Number: 08-15-101 CVC Registry: Iqaluit Plaintiff : Maigne Sese -and- Respondent: Valupharm Drugs (a division of 413622 Alberta Ltd), 413622 Alberta Ltd, and 319232 Alberta Ltd ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Plaintiff): J. Morton Counsel (Respondent): K.

Okita Location Heard: Iqaluit, Nunavut Dates Heard: January 17, 2017, January 18, 2017, and January 27, 2017 Matters: Costs REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I Overview [ 1 .] The plaintiff, Sese, has started a civil action. In his Statement of Claim , he says the defendant, Valupharm, wrongfully dismissed him. He also claims one of the two contracts of employment he signed is unenforceable. He claims various categories of damages. [ 2 .] Valupharm applied for

summary judgment and the dismissal of Sese’s action. It said Sese failed to show that there is a genuine issue for trial. [ 3 .] I heard the application in Iqaluit. I denied Valupharm’s application on January 17, 2017. Valupharm requested that the court receive written submissions on the costs issue. Both parties then filed written arguments. [ 4 .] Sese says he should be awarded costs for the unsuccessful

summary judgment application on a solicitor and client basis. Valupharm says only party and party costs should be awarded. II Issue [ 5 .] Thus, the Court must determine the appropriate cost award following the application. III Civil Procedure Rules [ 6 .] Applications for costs following a

summary judgment application are governed by

Part 12 of the Civil Procedure Rules [1] . [ 7 .] Rule 180 states:

(1) Subject to subrule (2), where the applicant obtains no relief on the application for

summary judgment, the Court may fix the respondent’s cost on the application on a solicitor and client basis and order the applicant to pay the costs forthwith.

(2) The Court may decline to fix and order costs under subrule (1) where it is satisfied that the making of the application, though unsuccessful, was nevertheless reasonable.

(3) Where it appears to the Court that a party to an application for

summary judgment has acted in bad faith or primarily for the purpose of delay, the Court shall fix the costs of the application on a solicitor and client basis and order the party to pay them forthwith. IV Analysis [ 8 .] Valupharm asserts that solicitor and client costs should only “be awarded in rare and exceptional cases, and only in instances where the threshold of reprehensible conduct is met”. [2] [ 9 .] Sese asserts that Rule 180 is similar to the Ontario Rule prior to 2009 where “it was clear that it is up to the party seeking

summary judgment to justify the motion and to justify that it was reasonable”. He says “the numerous factual controversies referred to in your Honour’s judgment, together with the lack of any cross-examination on affidavits made it abundantly clear that the motion could not succeed”. [3]

[ 10 .] Sese filed three affidavits in support of his action. In my January 17 judgment, I outlined several instances where Valupharm denied the factual foundations asserted by Sese in each of his affidavits. I stated, in part: … these are live issues which cannot be determined on the basis of the affidavit evidence before me .. the court in its truth seeking function cannot adjudicate on the basis of the competing affidavits.

The evidence must be tested in the crucible of cross examination at trial. [ 11 .] Nunavut’s Rule 180 (1) expressly states this Court has jurisdiction to order solicitor and client costs where appropriate. The wording of the Rule is clear and unambiguous. The Court need not find “reprehensible, scandalous or outrageous conduct” by the applicant [4] as a condition precedent. It is enough under the subsection 2 of the Rule, and I find, that the application for

summary judgment was unreasonable. In my respectful view, this case represents one of the situations contemplated by the Rule. [ 12 .] I turn now to subsection (3) of the Rule. It ought to have been clear to Valupharm from the outset that its application for

summary judgment was without merit, and destined inevitably to fail. Nevertheless, it brought its application. Also, in spite of my clear statement of that conclusion, Valupharm has litigated the costs issue. I draw the only rational inference from these facts that Valupharm has sought to delay the action throughout this process. V Conclusion [ 13 .] Valupharm has not established that its application for

summary judgment was reasonable. The application was unreasonable, and it has delayed unnecessarily the progress of this action. I award solicitor and client costs to Sese. The costs shall be taxed by the Taxing Officer. Upon taxation, Valupharm is ordered to pay those costs forthwith. Dated at the City of Iqaluit this 28 th day of March, 2017 ___________________ Justice P. Bychok Nunavut Court of Justice