Sanford v. Carleton Road Industries Association, 2021 NSSC 177

SUPREME COURT OF Nova Scotia Citation: Sanford v. Carleton Road Industries Association, 2021 NSSC 177 Date: 20210521 Docket: Ken No 347156 Registry: Kentville Between: Rhonda Sanford Plaintiff v. Carleton Road Industries Association Defendant DECISION Judge: The Honourable Justice John Keith Final Written June 11, 2020 Counsel: Derrick J. Kimball, Q.C. for the Plaintiff Grant Machum, for the Defendant By the Court: Costs Decision [ 1 ] This is my decision with respect to costs flowing from the following two motions: 1. The Plaintiff’s motion for additional disclosure (the “ Production Motion ”).

The requested disclosure included certain information which the Defendant redacted from previously disclosed documents. My decision in this matter is published as 2020 NSSC 170 ; 2. The Defendant’s motion to exclude an expert report obtained by the Plaintiff and authored by the psychologist, Dr. Myles Genest (the “ Expert Report Motion ”). Dr. Genest’s report is dated September 16, 2013. It was filed with the Court on November 29, 2019 but not delivered to the Defendant until June 4, 2019 - more than 5 years after it was prepared. My decision in this matter is published as 2020 NSSC 185 .

General Principles Entitlement [ 2 ] The preliminary and sometimes predominant factor in determining a party’s entitlement to costs revolves around the question of “success” in the proceeding. [ 3 ] “Success” is typically measured against the result or outcome. (Rule 77.03(3)) Thus, the party whose position most closely aligns with the Court’s ultimate disposition is normally deemed to have “succeeded” in the litigation. [ 4 ] That said, identifying the “successful” party is not always a straightforward process. There may be degrees of success.

In some cases, for example, a party may not be entirely victorious but substantially achieved the relief sought or succeeded on an issue which predominated or consumed most of the Court’s attention.

Quantum [ 5 ] Assessing costs seeks to achieve a measure of justice as between the parties. In terms of quantum, Fichaud, J.A. confirmed in Armoyan v Armoyan, 2013 NSCA 136 (“ Armoyan ”) that: The basic principle is that a costs award should afford substantial contribution to the party's reasonable fees and expenses. (at para 16). [ 6 ] In Nova Scotia, determining a “substantial contribution” normally involves the application of the applicable Tariff.

Referring again to Armoyan , Fichaud, J.A. described the Tariffs as the “norm” (at para 15) and explained that: The tariffs deliver the benefit of predictability by limiting the use of subjective discretion. This works well in a conventional case whose circumstances conform generally to the parameters assumed by the tariffs.

The remaining discretion is a mechanism for constructive adjustment that tailors the tariffs' model to the features of the case. (at para 17). [ 7 ] Rule 77.06(1) further states: Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act , a copy of which is reproduced at the end of this Rule 77. [ 8 ] For motions, the applicable Tariff is Tariff C. [ 9 ] Where the unique circumstances of a particular case overtake the assumptions embedded in the Tariff and the Tariff fails to achieve a fair and just result, a lump sum cost award may be appropriate.

However, the Court should not routinely abandon the Tariff. There must be a reason to depart from the norm ( Armoyan , at para 15 ). [ 10 ] In applying these general principles to this case, the following preliminary comments are also germane: 1. The Plaintiff seeks party and party costs in respect of the Production Motion – and the Defendant acknowledges the Plaintiff’s entitlement to costs. 2. The Defendant seeks party and party costs in respect of the Expert Report Motion – and the Plaintiff acknowledges the Defendant’s entitlement to costs. 3.

The parties also appear to agree that costs awarded to the successful party should represent a “substantial contribution” to that party’s reasonable fees and expenses. 4. There is one further, notable similarity in the manner in which the parties apply the general principles around costs. As indicated, each party was successful in one motion and unsuccessful in the other. Not surprisingly, where a particular party was successful and therefore entitled to costs, the amount of costs that party claims is significant.

However, where that same party was unsuccessful and is therefore liable to pay costs, the amount of costs that party proposes to pay are modest. In other words, each party suggests that costs should be significant in the motion where they prevailed and minimal in the motion where they did not prevail. The Production Motion [ 11 ] I agree that the Plaintiff is properly recognized as the successful party in the Production Motion.

The relief granted predominantly favours the Plaintiff; and the Defendant’s offer of compensation appropriately reflects that same conclusion. [ 12 ] The Plaintiff states that it was successful and seeks a lump sum amount of $3,000.00 and disbursements, payable forthwith. In support of that position, the Plaintiff relies upon Hill v Cameron , 2019 NSSC 164 . In that case, Justice M.

Heather Robertson determined costs on a motion in which the Defendant was successful in obtaining an order for production from the Plaintiff of a doctor’s file and entries from the Plaintiff’s personal journal The Plaintiff also cites the decision of Tri-Mac Holdings Inc. v Ostrom , 2019 NSSC 44 – a derivative action and shareholder’s dispute in which the moving parties proceeded with motions deemed meritless and wasteful.

Costs were granted above the Tariff amount. [ 13 ] The Defendant takes the position that success was mixed but concedes that, in the circumstances, the Plaintiff would reasonably be entitled to minimal costs in the amount of $250.00. [ 14 ] Having carefully considered the circumstances of this case, I do not believe that this is an appropriate case to deviate from the Tariff because: 1. As cautioned in Armoyan , the Court should not readily deviate from the Tariff. Were it otherwise, costs awards would begin to veer towards unpredictable and potentially arbitrary results; 2.

There was a degree of mixed success in the sense that the Plaintiff failed to obtain disclosure of certain information which was properly redacted as privileged. Pausing here, I do wish to emphasize that I do not diminish the Plaintiff’s success or deem success to be “mixed” in the sense of disqualifying the Plaintiff to costs. The Plaintiff’s concerns regarding the information redacted by the Defendant were largely vindicated.

In these circumstances, a party who decides to redact information must accept the related risks, including costs. (see my original decision and paragraph 15 below) The risk should not be unduly shifted to the party who is not given an opportunity to properly assess redacted information; 3. This was an interlocutory motion involving disclosure which did not include the sort of features which would warrant a lump sum award. For example, the procedure did not begin to approximate a trial; the issues were narrow and not especially complex; and the

effort expended was not disproportionate to the issues in dispute. 4. Any unique features in this case can be appropriately dealt with through the Tariff, having regard to the multipliers and Rule 77.07(2) which lists a number of additional factors which could bear upon the issue of entitlement and quantum. [ 15 ] Applying Tariff C, my view is that an award of $1,000.00 is an appropriate starting point for this motion. It appropriately reflects that I would then apply a multiplier of two for a total of $2,000.00. I make this decision having regard to the following: 1.

At paragraph 28 of the Production Motion Decision, I wrote: A party who redacts information subsequently deemed to be relevant (and ordered disclosed) takes a risk in terms of costs, having regard to the presumption of full disclosure and its importance to the fair and just determination of disputes.” In my view, the Defendant must bear financial responsibility for the risks associated with making unreasonable redactions.

In making this determination, I note that in my view some of the redacted information was clearly relevant and actually touched upon matters directly raised in the Statement of Claim (see paragraph 31 of the Production Motion Decision, for example). Were it not for the Plaintiff’s motion, clearly relevant information would have remained hidden from view. This would have be inconsistent with the presumption of full disclosure in Rule 14.08 and the duty to disclose in Rules 15.02 and 16.03; 2.

On a related note, I note the enumerated matters in Rule 77.7(2) confirm that the conduct of a party which affects the speed or expense of the proceeding can increase that party’s exposure to costs – as can steps taken in a proceeding unnecessarily or through excessive caution or by mistake. [ 16 ] In sum, I would award the Plaintiff $1,500.00 in costs for the Production Motion, payable forthwith.

The Expert Report Motion [ 17 ] On the question of entitlement and even though the Genest Report was not excluded, there is no issue that the Defendant was largely successful in its request for relief associated with the belated delivery of this expert opinion. The Defendant was prejudiced by the Plaintiff’s conduct. At Paragraph 32 of my original decision, I describe the nature of the prejudice. While the Plaintiff’s former counsel may bear some responsibility for the late delivery (i.e. not the Plaintiff personally), it would be unfair and wrong to require the Defendant to bear the financial consequences.

As I stated at Paragraph 33 of my original decision. I also have sufficient evidence to conclude that Ms. Sanford herself should not be held personally responsible. And I am loathe to attribute any potential sins of legal counsel upon the Plaintiff in the circumstances. [ 18 ] I also confirmed at Paragraph 33: To a degree, some of the prejudices identified by the Defendant can be remediated in the form of costs – both in terms of this motion but also in terms of having to conduct further discoveries of the Plaintiff that would not have been necessary had the Genest Report been produced in a timely fashion.

In my view, the Defendant is entitled to costs and the Plaintiff implicitly recognized this fact in that there was not consent as to entitlement. Rather, the dispute centres around crafting an appropriate costs award. [ 19 ] The Defendant seeks costs as follows: 1. $2,000.00 under Tariff C representing $1,000.00 under the Tariff C guidelines for a motion over an hour and under a half day, multiplied by 2; 2.

The costs of the court reporter to attend at the second discovery of the Plaintiff and to prepare a transcript (the bill for the court reporter will be sent directly to the Plaintiff); 3. $1,640.00 to reflect two hours of preparation time and two hours of attendance for counsel to conduct a second discovery examination of the Plaintiff. [ 20 ] The Plaintiff describes the Defendant’s proposal as unnecessarily punitive and proposes that: 1. The Defendant be permitted at its option to have further discovery of the Plaintiff on the expert report or any other post discovery production; 2.

The examination occur at the offices of the Defendant’s lawyers (Stewart McKelvey) in Halifax; 3. The parties be responsible for their own costs of any discovery and of any transcript arising out of the discovery; and 4. The Plaintiff accept responsibility for retaining a court reporter and for the reporter’s set up fees. [ 21 ] In my view an appropriate costs award for the Expert Report Motion is as follows: 1. $500.00 under the Tariff for the motion itself. The issues were contained and narrow. There was no doubt that the expert report was filed late. The only residual issue was remedy.

There shall be no multiplier; 2. The following additional remedies are granted to address the prejudices associated with late delivery of the Genest Report:

(

a) The Defendant shall be permitted at its option to have further discovery of the Plaintiff on the expert report or any other post discovery production. As well, the examination shall occur at the offices of the Defendant’s lawyers (Stewart McKelvey) in Halifax; (

b) The Plaintiff shall pay $1,000.00 towards the time associated with preparing for and attending at any discovery examination of the Plaintiff related to the expert opinion report; and (

c) The Plaintiff shall pay the costs of the court reporter to attend at the second discovery of the Plaintiff and to prepare a transcript to a maximum of $500.00. Keith, J.