Norbridge Management Ltd. v. Lienaux, 2012 NSSC 411

SUPREME COURT OF NOVA SCOTIA Citation: Norbridge Management Ltd. v. Lienaux, 2012 NSSC 411 Date: Date: 20121128 Docket: Hfx 381120 Registry: Halifax Between: Norbridge Management Limited Applicant v. Charles D. Lienaux and Karen Lynne Turner-Lienaux Respondents COSTS DECISION Judge: The Honourable Justice Cindy A. Bourgeois Written Submissions: October 30 and November 14, 2012, by the Applicant October 30 and November 16, 2012, by the Respondent Counsel: Alan V. Parish, Q.C., Jason Cooke, for the Applicant, Charles D.

Lienaux, self represented, Karen Lynne Turner- Lienaux, not participating and not represented by counsel. By the Court : [ 1 ] This decision follows the outcome of an Application brought under s. 18 of the Sale of Land Under Execution Act , R.S.N.S. 1989, c. 409. The Applicant, Norbridge Management Limited was successful in obtaining an Order granting a writ of possession in relation to residential property occupied by the Respondents. [ 2 ] The decision, reported as 2012 NSSC 318 , outlined the following procedural background:

1 By Notice of Application in Chambers dated February 20, 2012, Norbridge Management Limited ("Norbridge"), brought an application "for an order for a summons calling upon Charles D. Lienaux and Karen Turner-Lienaux to show cause why a writ of possession should not be issued to put Norbridge Management Limited in possession of the lands located at 332 Purcell's Cove Road, Halifax, Nova Scotia, PID Nos. 00633503, 41318585, and 00271015". The Applicant relies upon

Section 18 of theSale of Land Under Execution Act, R.S.N.S. 1989, c. 409 . A Notice of Contest was filed by Mr. Lienaux on February 28, 2012, in which he sought extensive relief. Ms. Turner-Lienaux has not participated in the proceedings. 2 On March 26, 2012, Charles D. Lienaux brought a motion seeking an order continuing the above Application in Chambers, as an Application in Court, pursuant to Civil Procedure Rule 5.17(2). 3 On May 7, 2012, Norbridge filed a Notice of Motion seeking, pursuant to Civil Procedure Rules 39.04 and 39.05 to have a number of paragraphs contained in an Affidavit of Charles D.

Lienaux, affirmed March 26, 2012, struck. 4 The above three motions were heard by Muise, J. on May 15 and 16, 2012. By Order issued May 31, 2012, Mr. Lienaux's Application to convert the matter to an Application in Court was dismissed; various provisions of the Affidavit of Charles D. Lienaux filed March 26, 2012 were struck out; two provisions contained in an Affidavit sworn by Tammy Reid on February 20, 2012 were revised; and relating to the writ of possession, "a summons requiring the Respondents, Charles D.

Lienaux and Karen Lynne Turner-Lienaux to attend before This Honourable Court to show cause why a writ of possession in favour of Norbridge Management should not issue is hereby issued in the form attached as

Schedule "A". [ 3 ] As the Respondent Ms. Turner-Lienaux did not participate in the above noted matters, the Applicant is seeking costs solely against the Respondent Charles D. Lienaux. The parties have been unable to reach agreement in relation to an appropriate quantum. Position of the parties [ 4 ] The Applicant seeks solicitor and client costs against the Respondent Lienaux, and submits that it is appropriate for this Court to set the amount, without taking the matter to taxation.

At my request, the Applicant filed additional material detailing the fees, taxes and disbursements charged by Counsel to the Applicant totalling $38,000.00. The Applicant submits that the circumstances of this matter constitute one of the rare and exceptional instances where the Court should grant solicitor and client costs against the Respondent. This is founded upon the Respondent's repeated and unequivocal assertions that the Applicant's counsel, and members of his law firm, knowingly perpetrated several acts of fraud and other dishonest acts.

The Applicant asserts that the allegations, found to be without merit by this Court, are such both in quantity and quality, that censure from the Court in the form of an award of solicitor and client costs is warranted. In the alternative, the Applicant asserts an award beyond what Tariff C would suggest, is warranted. [ 5 ] The Respondent Lienaux asserts that costs, and in particular solicitor and client costs should not be awarded, as this Court did not reach a correct decision. An appeal has been filed.

Disposition [ 6 ] Notwithstanding an appeal being undertaken of this Court's decision, I view it as proper to consider the issue of costs. After receiving the written submissions of the parties in relation to the costs determination, this Court was provided with an Order of Farrar, JA which specifically contemplated this Court proceeding to fix costs arising from the proceeding. I will do so. [ 7 ] As was referenced above, this matter involved not only the original Application, but several additional motions brought in relation thereto.

Justice Muise heard preliminary motions over a day and a half, with this Court sitting a full day. A significant amount of written material, both in the form of affidavits and briefs were generated in relation to the determinations made. Justice Muise directed that costs in relation to the matters before him would be determined in the cause, and as such, I will consider the time spent in relation to those matters in this cost assessment.

[8] The Civil Procedure Rules provide the Court with a broad discretion when determining costs. Rule 77.02(1) states: 77.02

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties. [9] Rule 77.03(2) further contemplates the awarding of solicitor and client costs, and reads: 77.03

(2) A judge may order a party to pay solicitor and client costs to another party in exceptional circumstances recognized by law. [10] Rule 77.06(3) further contemplates that party and party costs of an application in Chambers must, unless the presiding judgeorders otherwise, be determined in accordance with Tariff C.

As noted in Rule 77.07, a judge can also increase or decrease tariff costs,should it be deemed appropriate. [11] The real issue before the Court is whether an application of Tariff C is appropriate with any required adjustment, or in thealternative, the circumstances fall within the rare circumstances that solicitor and client costs are warranted. [12] It may be helpful at this juncture to consider first, the quantum of costs which would be ordered under Tariff C. Paragraph 4 ofthe tariff is applicable to the present instance, and reads:

(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the Judgepresiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending onthe following factors: (

a) the complexity of the matter, (

b) the importance of the matter to the parties, (

c) the amount of effort involved in preparing for and conducting the application. (such applications might include, but are not limited to, successful applications for

Summary Judgment, judicial review of an inferiortribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction.) [13] As this matter involved four different determinations, made over two and a half days, the Applicant submits that the basic costsamount would be $5000.00, which should be multiplied by 4, creating Tariff costs of $20,000.00. I would agree that a multiplier of 4 inthe present instance is warranted.

This is due not only to the fact that four different determinations were required, but that the forms ofrelief requested by the Respondent in responding to the original Application in Chambers were extensive, requiring considerable timeand effort on the part of the Applicant to address the merits of same. [14] Should the Court go beyond the tariff, and award solicitor and client costs as requested? As noted above, such awards are rare. In Hamilton v. Open Window Bakery Limited, 2004 SCC 9, the Supreme Court re-iterated as follows: 26. In Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at p. 134, McLachlin J. (as she then was) for a majority of this Courtheld that solicitor-and-client costs "are generally awarded only where there has been [page313] reprehensible, scandalous or outrageous

conduct on the part of one of the parties". An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does notlead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all suchattempts will be correctly considered to amount to "reprehensible, scandalous or outrageous conduct". However, allegations of fraud anddishonesty are serious and potentially very damaging to those accused of deception.

When, as here, a party makes such allegationsunsuccessfully at trial and with access to information sufficient to conclude that the other party was merely negligent and neitherdishonest nor fraudulent (as Wilkins J. found), costs on a solicitor-and-client scale are appropriate: see, generally, M. M. Orkin, The Lawof Costs (2nd ed. (loose-leaf)), at para. 219. [15] The above rationale is consistent with decisions from the Courts of this Province, most notably Brown v. MetropolitanAuthority, 1996 NSCA 91 , [1996] N.S.J. No. 146 (N.S.C.A.), and most recently Walsh v.

Unum Provident, 2012 NSSC 237. [16] Here, the Applicant argues forcefully that solicitor and client costs are appropriate given the nature of the allegations madeagainst its counsel . This is succinctly stated by Applicant's counsel in his written submissions as follows: A full collection of quotes from Mr. Lienaux accusing our firm of fraud is found at Appendix "A" to this brief. It is clear that theallegations of Mr. Lienaux are neither isolated, inadvertent, nor ambiguous. In fact it is quite the opposite: Mr.

Lienaux accuses myselfand members of my firm of acting "fraudulently", "with premeditated intent", committing "land title fraud with intent", "deceiving" anOfficer of the Court, and "breaching a duty as an Officer of the Court". The seriousness of such allegations - particularly when repeated so often and so strongly - cannot be understated. Simply put, these typesof allegations go to the heart of our profession.

To be accused of such things as premeditated fraud and deception against an Officer ofthe Court can only be characterized as an attack on the very pillars of professional conduct, namely integrity and honesty. Given all thecircumstances in this matter, but particularly the repeated and unfounded allegations of fraud and deception, the only appropriate awardin this instance is for solicitor-client costs. ... [17] The

schedule provided by counsel itemized over 30 instances where, in his written materials filed with the Court, theRespondent made allegations of fraud, deceit , dishonesty and intentional breach of Professional standards against Mr. Parish andmembers of his firm.

The Respondent continued to express the same sentiments in his oral submissions before me. [18] The Applicant relies on a number of case authorities from other provinces, as well as the view expressed by Orkin in the Law ofCosts, Vol. 1, 2nd ed., (Toronto: Canada Law Book, 2012) that allegations of fraud or a violation of a professional code of conduct canserve to trigger an award of solicitor and client costs. [19] The attacks on Mr. Parish and his firm were numerous, and without an evidentiary foundation. They were found to be withoutmerit.

Although the Respondent is a self-represented litigant, he is a longstanding member of the bar. Unlike many who appear in ourCourts without the benefit of legal training and experience, the Respondent here, would be expected to understand the seriousness ofmaking such pointed and blatant accusations, as well as the peril of not marshalling evidence to support same.

If this conduct is notreprehensible and deserving of censure, it is difficult to imagine what would be required to meet that standard. [20] If the Applicant had requested this Court to award it solicitor and client costs to be taxed, I would have done so in thecircumstances.

The Applicant however, and perhaps understandably so, did not wish to undertake the expense of a taxation which wouldlikely be appealed by the Respondent, but rather submitted that this Court should set the award based upon material submitted for myreview in relation to the time spent on the matter, as well as disbursements claimed. [21] Although the material submitted by counsel appears reasonable in terms of the amount billed to the Applicant, I am reluctant toaward the full amount without the Court and the Respondent having the benefit of a taxation.

As such, I am declining to award the fullamount claimed by the Applicant. [22] Having found that the conduct of the Respondent is deserving of censure, and served to unnecessarily complicate theApplicant's presentation of the matter, I will exercise my discretion to award an amount beyond the Tariff.

[ 23 ] In the circumstances, I find that the Applicant is entitled to an award of costs, inclusive of disbursements, in the amount of $30,000.00, payable forthwith. I would ask that counsel for the Applicant forward a draft order to my attention for review. J.