GARY TREMBLAY PLAINTIFF - v. -, 2023 SKKB 164

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 164 Date: 20 23 08 08 Docket: QBG-RG-03486-2018 Judicial Centre: Regina BETWEEN: GARY TREMBLAY PLAINTIFF - and - DWAYNE ANDERSON DEFENDANT Counsel: W. Timothy Stodalka and Anderson J. Stodalka for the plaintiff Reginald A. Watson, K.C. and Sean P. Watson for the defendant JUDGMENT ROBERTSON J. August 8, 202 3 INTRODUCTION [ 1 ] In my judgment of June 23, 2023, dismissing the plaintiff’s claim, I reserved on costs with leave to the parties to speak to costs, as requested by the parties.

The defendant’s lawyers wrote to the court on July 11, 2023 enclosing a draft bill of costs and formal offer to settle and asking for direction. In my fiat of July 18, 2023, I invited the parties to file written submissions with filing deadlines. ISSUES [ 2 ] From my reading of the filed submissions, there are four issues to address: 1. Whether costs should be awarded? 2. Whether costs should be awarded on column 1 or column 2? 3. Whether double costs should be awarded on the basis of the formal offer to settle? 4.

Whether second counsel costs should be included in the award of costs? [ 3 ] My answer to each question is Yes. I will explain below. ANALYSIS [ 4 ] Before dealing with the four issues, I will take note of the appeal of the judgment (CACV 4233). Effect of Appeal [ 5 ] The judgment is now under appeal (CACV 4233). The Court of Appeal Rules in Rule 15(4) provides that an appeal of a judgment does not stay the assessment of costs under that judgment. I am therefore able to deal with the issues arising from the draft bill of costs. Award of Costs

[ 6 ] The Queen’s Bench Rules in

Part 11: Recoverable Costs of Litigation, Assessment of Costs and Sanctions provides guidance on assessment of costs. Generally, the successful party is entitled to an award of costs. Having regard to the factors in Rule 11-1, I exercise my discretion to award costs to the defendant. Appropriate Column [ 7 ] The Tariff of Costs [Tariff] provides tables for calculation of costs.

Schedule I “B” provides for fees payable to lawyers for proceedings in the Court of King’s Bench. It lists steps in the litigation process with amounts recoverable under three columns. The informational note in the Tariff states that “The appropriate column is based upon the complexity of the matter.

Column 1 represents the least complex matter and Column 3 represents the most complex matter.” [ 8 ] In 1348623 Alberta Ltd. v Choubal , 2016 SKQB 200 at paras 24-25 , 94 CPC (7 th ) 210 [ Choubal ], Danyliuk J. held that the party seeking costs has the onus of justifying an award of costs on either of the higher columns: 2. What is the appropriate column on the tariff of costs on which to have the costs of this action assessed? [24] Defendants’ counsel suggests this was a lengthy and complex proceeding, such that column 3 of the tariff was appropriate.

Under the current tariff (which is relatively new) column 1 is the default position. A party may justify an award and assessment on one of the higher columns. The onus is on the party seeking costs on the higher column to justify same. [25] In the “preamble” to

Schedule I, “B”, the general Queen’s Bench tariff, it is indicated that “The appropriate column is based upon the complexity of the matter. Column 1 represents the least complex matter and Column 3 represents the most complex matter. The parties may agree upon the column to be applied failing which this must be decided by the Court.” [26] These revised tariff provisions have received relatively little judicial

interpretation as yet. The new tariff represents a fundamental change in the approach to costs, in that the amount in issue is not determinative of the column to be used to assess those costs. Complexity is the key. [ 9 ] In Thomas v Saskatchewan Indian Gaming Authority Inc. , 2021 SKCA 164 , the Court of Appeal addressed a ground of appeal that the trial judge had erred in awarding costs on column 2 of the Tariff. Kalmakoff J.A., writing for the court at para. 46, reviewed relevant law, quoting from Choubal : [46] Rule 11-1 of The Queen’s Bench Rules speaks to a judge’s discretion to award costs. The general rule is that the successful party in an action is entitled to costs. Rule 11-1(3)(

a) provides that the court may “fix all or part of the costs with or without reference to the Tariff”. Rule 11-1(4) lists a number of factors that the court may consider in exercising its discretion as to costs. Among others, they include the result of the proceedings, the amounts claimed and recovered, the importance of the issues, the complexity of the proceedings, and the conduct of the parties within the proceedings. As with the decision of whether to award costs, the decision as to which column of the Tariff should be used involves an exercise of discretion.

In 1348623 Alberta Ltd. v Choubal , 2016 SKQB 200 , 94 CPC (7th) 210 , Danyliuk J. succinctly described the factors to be considered in that respect: [28] There is no “magic” rule to apply to determine costs. As stated in Northland Material Handling Inc. v Parkland (County) , 2012 ABQB 586 at para 26 , 77 Alta LR (5th) 150 : “Rather than one principle, the weight of the case law establishes that the facts and circumstances of each particular case must be assessed to determine whether a higher column or a multiple of a column is appropriate in that case”.

I agree. … [30] Our Queen’s Bench Rules list some factors to consider in deciding what cost award to make. There is no corresponding list to determine which column of the tariff to use once that cost order is made. The tariff itself clearly imports complexity as the dominant consideration in selection of a column. [31] Distilling the cases and considering the nature of our Rules and tariff, it strikes me that in determining on which column party- and-party costs ought to be awarded, the following factors should be considered: (

a) Complexity of the case. … (

b) Importance of the case. … (

c) The duration and conduct of the proceedings. … (

d) The urgency of the matter. … (

e) The amount at issue. … (

f) Whether experts were involved. … (

g) Parity and expectations. … (

h) Access to justice. … (

i) Discretion and reasonableness. … (

j) Any other relevant matter.

[ 10 ] The defendant calculated costs under column 2 on the basis that the action and trial were moderately complex. The plaintiff argues that column 1 is appropriate. To decide on the appropriate column, I will review the factors from Choubal at para 31 . (

a) Complexity of the case [ 11 ] The parties filed a joint book of 136 exhibits in two binders. Six additional exhibits were entered at trial. The statement of claim was amended. The amended statement of claim was seven pages with 34 paragraphs. The claim identified and counsel argued liability based upon five separate causes of action: breach of contract; breach of fiduciary duty (involving multiple bases for fiduciary duty); breach of warrant of authority; negligent misrepresentation; and equitable doctrine of proprietary estoppel.

The decision was 25 pages with 94 paragraphs. [ 12 ] As Danyliuk J. stated in Choubal at para 26 , “Complexity is the key.” This was a legally complex case, which favours an award under column 2. (

b) Importance of the case [ 13 ] The case was important to the parties. It has limited significance beyond the parties. [ 14 ] This factor is neutral. (

c) The duration and conduct of the proceedings [ 15 ] The trial was scheduled for five days. Both parties were represented by two lawyers. The trial heard evidence May 8-11 and the afternoon of May 25, 2023, so four and one-half days. [ 16 ] During the trial there were objections to evidence which required rulings and a voir dire over qualification of a proposed expert witness (questioning necessity of evidence). Adjournments were granted to allow counsel to prepare to make argument on some of these disputed matters. [ 17 ] The parties agreed to file written closing argument.

Both parties filed lengthy written argument. The plaintiff’s written argument was 35 pages with 198 paragraphs. The plaintiff also filed a rebuttal brief which was 5 pages and 27 paragraphs. The defendant filed written argument of 35 pages with 147 paragraphs and a response brief of 7 pages with 23 paragraphs. [ 18 ] This factor favours award of costs under column 2. (

d) The urgency of the matter [ 19 ] This factor is more applicable to applications where counsel must drop everything to argue on an urgent basis, rather than trials. There was no particular urgency to this trial. [ 20 ] This factor is neutral. (

e) The amount at issue [ 21 ] The amount of the claim is unknown. The plaintiff claimed damages to be proven at trial, general damages and special damages, punitive, exemplary and/or aggravated damages and solicitor-client costs. [ 22 ] This factor favours award of costs under column 2. (

f) Whether experts were involved [ 23 ] The plaintiff called an expert witness. A voir dire was required to qualify the witness. [ 24 ] This factor favours award of costs under column 2. (

g) Parity and expectations [ 25 ] The parties did not point to awards of costs in comparable cases. From my experience as a trial judge, column 2 strikes me as appropriate. [ 26 ] This factor favours award of costs under column 2. (

h) Access to justice [ 27 ] This factor is concerned with awards of costs that deter valid claims and thereby impede access to justice. That is not a concern in this case. This was a dispute over business dealings between two experienced business persons with the financial ability to litigate. The Tariff is prepared by the court considering many factors, including the need to promote and maintain access to justice. So an award that employs the Tariff should already take this concern into account.

[28] This factor is neutral. (

i) Discretion and reasonableness [29] In awarding costs, the trial judge is required to exercise discretion in a fair and reasonable manner. An award ofcosts under column 2 is in my view fair and reasonable, having regard to all of the circumstances. [30] This factor favours award of costs under column 2. (

j) Any other relevant matter [31] My experience presiding over the trial causes me to conclude that column 2 is appropriate. Conclusion [32] Based on my review of the factors, I am satisfied that column 2 is the appropriate column for the award of costs. Offer to Settle [33] The Queen’s Bench Rules in Rule 4-31(2) provide for doubling of costs award where an offer to settle wasdeclined and that offer would have been a more favourable result for the unsuccessful party: Costs consequences of formal offer to settle 4-31 . . .

(2) Subject to subrule (3), if a defendant makes a valid formal offer that is not accepted and a judgment or order in the action is made thatis equal to or more favourable to the defendant than the formal offer, the defendant is entitled to double costs for all steps taken in theaction in relation to the action or the claim after service of the formal offer. [34] The purpose of this Rule is to encourage parties to be reasonable and settle disputes out of court. [35] The defendant’s lawyers filed an offer to settle served on plaintiff’s lawyer on March 27, 2023 in which thedefendant offered $40,000 in full and final satisfaction of the plaintiff’s claim.

The plaintiff does not dispute that this offer was notaccepted. The judgment issued after trial dismissed the plaintiff’s claim. [36] The plaintiff argues that there are special circumstances that justify departure from Rule 4-31. First, that thedefendant was the plaintiff’s lawyer. And second, that the plaintiff provided assistance to the defendant in the preparation of hissuccessful application for a retail cannabis store licence. [37] I am not satisfied that these are special circumstances that justify departure from this Rule entitling thesuccessful party to double costs.

I found in the judgment that, although the defendant had provided legal services to the plaintiff, he wasnot acting as his lawyer in this matter. I also found that the sharing of information between the parties was of mutual benefit. In anyevent, I do not see that either has a bearing on the application of Rule 4-31. [38] The defendant is entitled to double costs as claimed in the draft bill of costs. Second Counsel Costs [39] Item 36 of

Schedule I “B” of the Tariff provides for “Counsel Fee at Trial to Second Counsel – in discretion ofthe Trial Judge, not to exceed ½ of the counsel fee to First Counsel, if considered necessary”. [40] Danyliuk J. considered granting second counsel fees in Choubal at paras 43-46.

In doing so, he cited ElectronicSuperstore Ltd. v Geransky Brothers Construction Ltd. (1991), (SK KB), 90 Sask R 150 (Sask KB) at para32 where Baynton J. wrote “the determining factor is whether the presence at the trial of second counsel is reasonably required”: [32] Both the plaintiff and the defendant Boychuk were represented by second counsel. Only the defendant Geransky was not sorepresented. In view of the fact that the defence was conducted primarily by the defendant Boychuk, this dissimilarly in the manner inwhich the defendants were represented in understandable.

Schedule I of the Tariff of Costs makes provision for second counsel inimportant cases. Although all cases are presumably important to each litigant and counsel, the determining factor is whether the presenceat the trial of second counsel is reasonably required. This involves a consideration of the importance of the issues at stake, the amount atrisk, the complexity of the evidence, the length of the trial, and like factors. … [41] Both parties were represented by two lawyers at trial. The plaintiff disputes the defendant’s claim for secondcounsel costs.

The defendant points out that the plaintiff, in his written closing argument at para. 198, requested second counsel costs. [42] In any event, I am satisfied that second counsel costs are appropriate because the presence of second counsel

was reasonably necessary, given the number of exhibits and issues in play. Further, defendant’s second counsel performed significant work at trial, including questioning witnesses and making oral argument. He was not just there to watch and learn or carry the bags for senior counsel. He played an effective and integral part of the defence team. [ 43 ] I therefore exercise my discretion to rule that second counsel costs are properly included as part of the award of costs. Conclusion [ 44 ] The draft bill of costs filed on July 11, 2023 may issue. J. D.N. ROBERTSON