Day v. Valade, 2017 NSSC 242

SUPREME COURT OF Nova Scotia Citation: Day v. Valade , 2017 NSSC 242 Date: 20170914 Docket: HFX457856 Registry: Halifax Between: Erin Day and Shaun Day Applicants v.

Rose Lynn Valade and Serge Valade Respondents Cost Decision Judge: The Honourable Justice Michael Wood Heard: June 14 and 15, 2017, in Halifax, Nova Scotia Final Written Submissions: July 31, 2017 Counsel: Michelle Chai and Sarah Walsh, for the Applicants Jonathan Hooper and Katie Ship (student), for the Respondents By the Court: [ 1 ] The resolution of this dispute between neighbours on Rocky Lake in Bedford represents a text book example of the benefits of the Application in Court procedure which was created by this court in 2009.

The proceeding was commenced by notice filed on November 25, 2016, and on June 26, 2017, I issued a written decision following a full hearing on the merits ( 2017 NSSC 175 ). The only issue which remains to be resolved is the cost consequences of that decision. [ 2 ] The respondents were successful in defending the applicant’s claim that their wharf and dock interfered with the applicant’s riparian rights to access Rocky Lake.

There were alternative claims in nuisance and negligence which were also dismissed. [ 3 ] The respondents say that the court should depart from Tariff A found in Civil Procedure Rule 77 and award lump sum costs in the amount of $37,657.65 inclusive of disbursements which represents 75% of the actual legal costs incurred. [ 4 ] The applicants say that there is no reason to depart from the Tariffs and if those are applied costs of $8,700 inclusive of disbursements would be a fair and reasonable assessment. [ 5 ] Civil Procedure Rule 77.08 gives the court discretion to award a lump sum instead of Tariff costs.

The presumption is that the Tariff should be applied unless the party seeking the lump sum can establish circumstances to show that it is justified in order to do justice between the parties. The Nova Scotia Court of Appeal described the recommended approach to the issue in Armoyan v. Armoyan ,

2013 NSCA 136, as follows: Tariff or Lump Sum? 15 The tariffs are the norm, and there must be a reason to consider a lump sum. 16 The basic principle is that a costs award should afford substantial contribution to the party's reasonable fees and expenses. InWilliamson, while discussing the 1989 tariffs, Justice Freeman adopted Justice Saunders' statement from Landymore v.

Hardy (1992), (NS SC), 112 N.S.R. (2d) 410: The underlying principle by which costs ought to be measured was expressed by the Statutory Costs and Fees Committee in these words: "... the recovery of costs should represent a substantial contribution towards the parties' reasonable expenses in presenting or defendingthe proceeding, but should not amount to a complete indemnity." Justice Freeman continued: In my view a reasonable

interpretation of this language suggests that a "substantial contribution" not amounting to a complete indemnitymust initially have been intended to mean more than fifty and less than one hundred per cent of a lawyer's reasonable bill for the servicesinvolved. A range for party and party costs between two-thirds and three-quarters of solicitor and client costs, objectively determined,might have seemed reasonable.

There has been considerable slippage since 1989 because of escalating legal fees, and costs awardsrepresenting a much lower proportion of legal fees actually paid appear to have become standard and accepted practice in cases notinvolving misconduct or other special circumstances. 17 The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventional casewhose circumstances conform generally to the parameters assumed by the tariffs.

The remaining discretion is a mechanism forconstructive adjustment that tailors the tariffs' model to the features of the case. 18 But some cases bear no resemblance to the tariffs' assumptions. A proceeding begun nominally as a chambers motion, signallingTariff C, may assume trial functions, contemplated by Tariff A. A Tariff A case may have no "amount involved", other important issuesbeing at stake. Sometimes the effort is substantially lessened by the efficiencies of capable counsel, or handicapped by obstructionism.The amount claimed may vary widely from the amount awarded.

The case may assume a complexity, with a corresponding workload,that is far disproportionate to the court time, by which costs are assessed under provisions of the Tariffs. Conversely, a substantial summay turn on a concisely presented issue. There may be a rejected settlement offer, formal or informal, that would have saved everyonesignificant expense. These are just examples.

Some cases may combine several such factors to the degree that the reflexive use of thetariffs may inject a heavy dose of the very subjectivity -- e.g. to define an artificial "amount involved" as Justice Freeman noted inWilliamson -- that the tariffs aim to avoid. When this subjectivity exceeds a critical level, the tariff may be more distracting than useful.Then it is more realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum.

Aprincipled calculation should turn on the objective criteria that are accepted by the Rules or case law. [6] In Armoyan the Court of Appeal concluded that the circumstances justified departure from the Tariff for a number of reasonsincluding the litigation strategy of the respondent and the evolution of the motion into a proceeding resembling a complex trial. In thatcase the underlying assumptions supporting the Tariff calculation were inapplicable. [7] In this proceeding the circumstances relied upon by the respondents to justify a lump sum award are as follows: 1.

The claim involved a declaration and injunctive relief for the alleged interference with the applicant’s property rights and thelack of any quantified damages makes the determination of a “amount involved” for Tariff purposes artificial. 2. The respondents had always maintained that the applicant’s claims were frivolous and vexatious but had to incur significantcosts to respond to the allegations. [8] In my view these do not justify a departure from the Tariff calculation which recognizes that, in some cases, litigation willinvolve non-monetary issues.

In those situations the Tariffs direct that the court determine the amount involved having regard to thecomplexity of the proceeding and the importance of the issues. [9] The issues were significant to the parties because they related to enjoyment of their homes but of limited relevance to thebroader public. The briefs filed by the parties demonstrate that there is little litigation in Canada over riparian rights and nuisanceinvolving landowner’s water access. [10] The proceeding was not complex. It was resolved by a written decision following a day and half hearing seven months after itwas initiated.

There was a half-day discovery examination of one party and a total of four affidavits, the longest of which was 48paragraphs. One affidavit was from an expert witness who provided a surveyor’s location certificate and sounding plan for the lake. It isobvious that counsel moved the litigation forward in a very efficient manner resulting in a hearing that was focused on the true issues. [11] In determining the amount involved where the issues are not monetary in nature some courts in Nova Scotia have applied a“rule of thumb” of $20,000 for each day of the hearing.

This has been criticized in some cases as being arbitrary and only to be used as alast resort (see Henneberry v. Compton, 2014 NSSC 412). While the approach may be arbitrary it also has the attraction of creating areasonably predictable cost calculation, ensuring that cases of equivalent complexity and length attract similar cost awards. If I were toapply this rule of thumb the amount involved in this case would be $40,000.

I am satisfied that this is an appropriate figure to use andwill result in an award that is commensurate with the nature and complexity of the proceeding. [12] Applying Tariff A to an amount involved of $40,000 gives an award of $6,250 to which is added $2,000 per day of hearing fora total of $10,250. Rule 77.07(1) gives the court discretion to add or subtract an amount from Tariff costs. Frequently this is done to

sanction or reward the conduct of the parties. In this case I see no reason to exercise this discretion. Although the Days were not successful I believe they acted reasonably in trying to resolve an issue of great personal concern to them. It would not have been apparent to them that they would be unsuccessful, particularly given the very limited jurisprudence which existed. [ 13 ] The respondents seek disbursements totalling $907.65. They do not appear to have reduced the photocopying and printing costs as directed by Practice Memorandum No. 10.

I would therefore fix the disbursements at a total of $800 including HST. [ 14 ] By order dated March 28, 2017, Justice Coughlan awarded costs in favour of the respondent in the amount of $500 in relation to a production motion which he heard. That amount is in addition to the costs which I have fixed in relation to the hearing. Wood, J.