Iqaluit (Director of Child and Family Services) v O.M., 2022 NUCA 7

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Iqaluit (Director of Child and Family Services) v O.M., 2022 NUCA 7 Date: 20221020 Docket: 08-21-16-CAC Registry: Iqaluit Between: The Director of Child and Family Services Appellant - and - O.M., G.E., N.H., and I.H. Respondents Restriction on Publication Identification Ban – This judgment has been anonymized to comply with provisions of the Child and Family Services Act C.S. Nu., c. C-50. Letters have been assigned to represent the parties at random.

Disclosure of any information that would identify the child, or any members of the child’s family, is strictly prohibited. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of The Honourable Justice Frederica Schutz _______________________________________________________

______________________________________________________ Reasons for Decision of The Honourable Justice Frederica Schutz _______________________________________________________ [ 1 ] On July 14, 2021, a judge awarded costs in favour of N.H. and I.H. (the “Hs”) against the appellant, Director of Child and Family Services (the “Director”), following the Hs successful application to be granted standing in the Director’s application for a temporary custody order concerning the Hs’ grandchild (the “child”). The Director initially filed a Notice of Appeal in relation to the costs award, and later a permission to appeal application as required under Rule 4(1)(

e) of the Rules of the Nunavut Court of Appeal Respecting Civil Appeal , Nu Reg 014-2018 [ Rules ] which relates to an appeal of a “decision as to costs only”. [ 2 ] The permission to appeal application was set to be heard on September 20, 2022, but the Director filed a Discontinuance of Appeal on September 15, 2022. The discontinuance followed an August 19, 2022 costs decision in the trial matter concerning custody of the child, and in which the trial judge found the Director had acted “fairly and within its mandate” and declined to award trial costs to the Hs.

The costs decision was rendered more than 9 months after the November 5, 2021 trial decision which returned the child to the care of the Hs, and contributed to some of the delay in this appeal matter. [ 3 ] The parties have agreed to have the matter of costs in this discontinued appeal dealt with by way of written submissions, which I have carefully reviewed. Rule 52 of the Rules provides: 52

(1) An appellant may discontinue an appeal by filing and serving a Notice to Discontinue in Form AP-4, and the respondent is entitled to a costs award for having responded to the appeal . [Emphasis added] [ 4 ] Nothing on the appeal or permission to appeal application was done by the respondents in terms of responding to the appeal, save for reviewing the appellant’s appeal books and permission to appeal materials. No factums or authorities had been filed by either party on the appeal and no oral or contested arguments were made.

Prior to the filing of the permission to appeal application, the parties made three speak-to appearances before this Court on the appeal, on November 9, 2021, March 16, and July 20, 2022. Again, at the time of these appearances, while the trial decision had been rendered in late 2021, the Hs’ request for costs against the Director following trial remained outstanding until August 19, 2022; this delay was one of the reasons that the Director sought to hold the appeal in abeyance pending the trial costs decision in case a further appeal would be pursued and could be heard at the same time.

This was a reasonable pursuit of judicial economy in this matter. [ 5 ] On July 15, 2022, the Hs indicated their consent to the Director’s permission to appeal application. However, they also cross-applied for public interest advanced costs (in the amount of $20,800) in the appeal and sought orders in relation to privacy and the open court principle, and the appeal record which they claimed was deficient. Those cross-applications were set to be heard on September 20, 2022, with the permission to appeal application, but did not occur after the discontinuance.

The Hs have not otherwise appealed the decision denying them trial costs. [ 6 ] The Hs now seek enhanced costs from what they claim is a “late” discontinuance. Their argument, that the “Director never advised or signaled a potential discontinuance, until mere days before hearing”, is somewhat difficult to reconcile with the timing of the events in this matter, including that their cross-applications were not filed until July 15, 2022 and the costs decision of the trial judge was not filed until September 16, 2022.

It is also difficult to reconcile any notion of the need for enhanced costs with the fact that half of the expended hours on counsel’s revised bill of costs attached to the Hs’ costs materials on the discontinuance, were spent on the preparation of their own cross-application materials, and not the appeal or permission to appeal application. [ 7 ] Their consent to the permission to appeal application aside, the cross-applications were in advance of this Court having made any decision on whether permission to appeal should be granted, or the appellant filing its factum on the appeal.

On the former, had permission to appeal been denied, the cross-applications would have become unnecessary. [ 8 ] In any event, the $12,814 plus GST being claimed by the Hs is well beyond the Rules ,

Schedule B, Column 1 costs which would otherwise be owing pursuant to Rule 52, in terms of preparation and appearance costs for “having responded to the appeal”.

The Director submits there is no basis for finding egregious conduct or bad faith by the Director in this matter that would warrant an award of solicitor-client costs, or what the Hs have argued should be awarded as a result of the “desire of the Director not to be held [ ] accountable”, or to overcome a rate stated to be an “indescribably inelegant categorization when the matter at issue is a child.” I agree. [ 9 ] The Director takes the position that no costs should be awarded against it as there is no presumption of costs against a Director in child protection matters given its mandate, except in rare cases involving exceptional circumstances or bad faith, neither of which is present here.

The Director also states that it acted as expeditiously as possible in the circumstances pending the trial costs decision and all appearances have been routine; it further maintains there were no deficiencies in its Appeal Book. The Director otherwise argues that should costs be awarded, it should be on the Column 1 scale for uncontested appearances.

[ 10 ] While there may be no presumption of costs against a Director in a child protection matter, this is about costs owing following the discontinuance of an appeal of a costs award. I conclude Rule 52 applies in respect of a discontinuance and the Hs are entitled to costs for “responding to the appeal”. As set out above however, much of their response has been either preliminary, or of their own making in filing various cross-applications.

The Director advises that in early September, it offered to pay the Hs $2,500 in appeal costs and did not receive a response; instead, the Hs’ counsel filed written submissions and a revised solicitor-client bill to the court on September 17, 2022, to which the Director had to respond. [ 11 ] I conclude there is no basis to award the Hs enhanced or indemnity costs; I am not persuaded the Director in any manner departed from the standards expected of it.

I do find however, that the Hs are entitled to modest costs for responding to the Director’s appeal under Column 1 for speaking to the list ($270 x 3) and all other preparation ($675). I round these amounts up, and jointly award the Hs the total sum of $1500, inclusive of disbursements and GST, payable by the Director within 45 days of issuance of this memorandum. [ 12 ] To be clear, nothing in this memorandum is to be understood as having any precedential value or having any bearing whatsoever on any other matter that may come before this or any other Court.

Written submissions on costs filed on September 17 and September 19, 2022. Memorandum filed at Iqaluit, Nunavut this 20th day of October, 2022 Schutz, J.A. Appearances: S. MacPherson For the Director of Child and Family Services A. Crawford For the Respondents, N.H. and I.H. G.E. For the Respondent, G.E. T. Hopkins For the Respondent, O.M.