BRADEN GRIFFITHS PLAINTIFF - v. -, 2022 SKKB 238

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 238 Date: 2022 11 01 Docket: QBG-SA-00318-2016 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: BRADEN GRIFFITHS PLAINTIFF - and - 101186119 SASKATCHEWAN LTD., carrying on business under the name, RETHINKING CONSTRUCTION, ERROL CASTLE and CASTLE DESIGN AND MARKETING SERVICES LTD. DEFENDANTS - and - SHEILA GAMBELL DEFENDANT BY COUNTERCLAIM Counsel: Grant A. Richards for the plaintiff and defendant by counterclaim Jennifer D. Pereira, K.C. for the defendants Errol Castle and Castle Design Michael J.

Krawchuk for the defendant 101186119 ___________________________________________________________________________ FIAT ELSON J. November 1, 2022 ___________________________________________________________________________

Introduction [ 1 ] This fiat addresses the type of costs award to be made where, owing to the fault of a party, the trial of a civil action is adjourned shortly before it is scheduled to begin. While the parties agree that there should be an award of costs in any event of the cause, they disagree on the amount to be awarded and whether the award should be payable forthwith. Background [ 2 ] In this action, the plaintiff seeks damages for alleged deficiencies in the construction of a house on an acreage outside of Saskatoon.

Although the statement of claim does not set out the amount of damages sought, the plaintiff’s counsel candidly advised the Court that, if successful, the plaintiff could reasonably expect damages ranging between $300,000 and $500,000. The defendants are vigorously defending the action both on liability and quantum of damages. They are also pursuing a counterclaim. [ 3 ] The timeline of relevant events, between July 2020 and October 6, 2022, is not in dispute. A reasonable description of that timeline is as follows: a.

A joint request for pre-trial conference was signed by counsel for all the parties in July 2020, and a pre-trial conference was scheduled for December 14, 2020. b. The defendants served their respective notices of expert and notice of joint expert on or about December 4, 2020. No notice of expert was filed on behalf of the plaintiff. c. Despite the absence of a notice of expert for the plaintiff, the defendants came to understand that the plaintiff might rely on expert evidence to be given by an employee of Rempel Engineering & Management Ltd. [Rempel]. d.

The pre-trial conference proceeded, as scheduled, before Haaf J. In the management aspect of the conference, Haaf J. gave instructions, which included a direction that the plaintiff shall serve any notices of expert no later than 90 days prior to trial, and to serve his witness list no later than 30 days prior to trial. e. The trial was subsequently scheduled to commence on October 17, 2022 and was expected to run for 10 trial days. The Chief Justice assigned me to preside at the trial. f. The plaintiff did not comply with the service deadlines for the expert witness notices or the witness list. g.

On September 21, 2022, one of the defence counsel corresponded with the plaintiff’s counsel to confirm his client would not be calling any expert evidence other than the employee from Rempel. h. On September 26, 2022, the defendants learned that the employee from Rempel had contacted and attempted to question the defendants’ joint expert witness. i. On September 28, 2022, the plaintiff’s counsel advised one of the defence counsel that the employee from Rempel was preparing a new report and that the plaintiff would consent to an adjournment if one was requested by the defendants. j.

During the days October 4-6, 2022, the plaintiff’s counsel served additional statements of expertise and reports, including a new report prepared by two employees of P. Machibroda Engineering. Both defence counsel made it clear that they would object to the additional expert material evidence. [ 4 ] Following the defence objections, the plaintiff’s counsel sought an adjournment of the trial. I heard that request through a conference call on October 7, 2022. At that hearing, I directed the adjournment of the trial and vacated the dates.

In doing so, I invited counsel to provide submissions on the costs that should be assessed arising from the adjournment. Those submissions were heard on October 13, 2022. Positions of the Parties [ 5 ] The plaintiff accepts that the defendants are entitled to costs from the adjournment. That said, relying on the decision of this Court in Pearson v Pearson , 2000 SKQB 161 [ Pearson ], he argues that the award should not exceed taxable costs for the adjournment request, in any event of the cause, but not payable forthwith. [ 6 ] The defendants have much bigger appetites for costs.

Relying principally on Ontario authorities, Errol Castle and his company seek costs thrown away amounting to $20,621.55 before taxes. 101186119 Saskatchewan Ltd. also seeks costs thrown away in the amount of $36,725.00. These amounts are calculated either as a percentage, or the total, of the actual fees incurred and/or recorded for work done in preparation for the now adjourned trial and to address the adjournment request. The defence submissions are both premised on the view that, when costs are thrown away, the quantum of those costs should be based on full recovery or near full recovery.

Law and Analysis [ 7 ] The Court’s power to make awards of costs is grounded in its original jurisdiction, as regulated by The Queen’s Bench Rules . In exercising its jurisdiction, the Court has broad discretion. This discretion is more specifically described in Rule

11-1, which reads as follows: 11-1

(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate.

(2) In exercising its discretion as to costs, the Court may determine: (

a) by whom costs are to be paid, which may include a successful party; (

b) to whom costs are to be paid; (

c) the amount of costs; (

d) the date by which costs are to be paid; and (

e) the fund or estate or portion of the fund or estate out of which costs are to be paid.

(3) In awarding costs the Court may: (

a) fix all or part of the costs with or without reference to the Tariff; (

b) award a lump sum instead of or in addition to any assessed costs; (

c) award or refuse costs with respect to a particular issue or step in a proceeding; (

d) award assessed costs up to or from a particular step in a proceeding; (

e) award all or part of the costs to be assessed as a multiple or a proportion of any column of the Tariff; (

f) award costs to one or more parties on one scale, and to another party or other parties on the same or another scale; (

g) direct whether or not any costs are to be set off; and (

h) make any other order it considers appropriate.

(4) In exercising its discretion as to costs, the Court may consider: (

a) the result of the proceeding; (

b) the amounts claimed and the amounts recovered; (

c) the importance of the issues; (

d) the complexity of the proceedings; (

e) the apportionment of liability; (

f) any written offer to settle or any written offer to contribute; (

g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (

h) a party’s denial of or refusal to admit anything that should have been admitted; (

i) whether any step in the proceeding was improper, vexatious or unnecessary; (

j) whether any step in the proceeding was taken through negligence, mistake or excessive caution; (

k) whether a party commenced separate proceedings for claims that should have been made in one proceeding or whether a party unnecessarily separated his or her defence from that of another party; and (

l) any other matter it considers relevant. [ 8 ] Of course, the discretion described in Rule 11-1 is not unlimited and must be exercised judicially. In exercising its judicial discretion, the Court must draw guidance from previous cost awards and apply principles articulated by appellate courts. An example of articulated principles, which is of some relevance to this case, is found in Siemens v Bawolin , 2002 SKCA 84 , 219 Sask R 282 [ Siemens ]. In that case, the Saskatchewan Court of Appeal identified four principles that govern awards for solicitor and client costs.

As recited from para. 118 of Siemens , these principles are as follows: 1) solicitor and client costs are awarded in rare and exceptional cases only; 2) solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3) solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone;

4) notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred. [ 9 ] In the present case, the plaintiff urges the Court to be mindful of the approach observed in Pearson . There, the petitioner gave inadequate notice of her intention to call an expert witness, two weeks before the trial. The inadequate notice impacted both parties’ readiness for trial and resulted in its adjournment.

After expressing sharp criticism of the inadequate notice, Wright J. simply ordered costs in the cause. [ 10 ] As mentioned, the defendants’ submissions rely heavily on Ontario authorities. In particular, the defendants posit that costs in this instance should be awarded on a “thrown away” basis as described in Caldwell v Caldwell , 2015 ONSC 7715 , 70 RFL (7th) 397 [ Caldwell ] .

At para. 9 of Caldwell , Quinlan J. identified the following three general categories of costs thrown away: i. the first category deals with fault where, for example, one of the parties or their counsel neglect to call a witness or a last-minute amendment is required. The court will grant the adjournment on conditions, including the payment of costs thrown away; ii. the second category is where the trial is adjourned because of the court’s scheduling problems.

No costs are awarded in this circumstance as no party bears responsibility for the adjournment; and iii. the third category deals with adjournments sought by one of the parties as a result of no fault on their part. Costs thrown away are still awarded against the party applying for the adjournment, notwithstanding the lack of fault… [ 11 ] Aside from endorsing the concept described in Caldwell , the defendants further contend that the Court should also follow the Ontario approach of awarding costs thrown away on a full recovery, or near full recovery, basis.

Although this approach is not applied in every case, it is generally reflected in a number of decisions, including Milone v Delorme , 2010 ONSC 4162 at para 12 ; Middleton v Jaggee Transport Ltd ., 2014 ONSC 3041 at para 5 [ Middleton ]; Pittiglio v Pittiglio , 2015 ONSC 3603 at para 5 ; and Campsall v Steve Crea Homes Ltd. , 2018 ONSC 480 at para 11 [ Campsall ]. [ 12 ] I suspect that, to some degree, the Ontario approach is informed by the interplay between s. 131 of the Courts of Justice Act , RSO 1990, c C.43 , and Rule 57.01 of the Ontario Rules of Civil Procedure , RRO 1990, Reg 194 , and their predecessor provisions.

In this regard, it is noteworthy that Rule 57.01(4)(

c) and (

d) specifically recognizes broad discretion for cost awards on a “substantial indemnity” or “full indemnity” basis. As to what is meant by the term “substantial indemnity”, this was addressed in Sabean v Aikman , 2016 ONSC 7010 , where Master Dash heard a claim for costs after an unsuccessful application to remove counsel of record on the basis of conflict of interest. Master Dash concluded that the application lacked foundation and that the allegations of conflict were “remote, speculative and minimal”.

While recognizing that substantial indemnity awards should generally be made in circumstances where there has been reprehensible, scandalous or outrageous conduct, Master Dash opined that this application was “tactical” and served to delay resolution of the claim. Accordingly, costs on a substantial indemnity basis were justified.

Recognizing that such costs are generally considered to be in the range of “85% of reasonable actual rates”, the unsuccessful applicant was directed to pay costs of $13,400 within 30 days. [ 13 ] Illustrations of substantial indemnity costs, on a thrown away basis, are apparent in the Middleton and Campsall decisions. In Middleton , the plaintiff claimed costs thrown away following the last minute adjournment of a trial for a personal injury claim.

The plaintiff sought almost full recovery for fees incurred in meetings and telephone calls with witnesses, arranging travel time for witnesses and preparing statements of law. This claim for fees amounted to $42,790. In addition, the plaintiff sought $25,307 in disbursements, for a total of $68,097.

After reviewing the plaintiff’s estimate of costs, Howden J. assessed the claim for fees at $16,925 and reduced the claim for disbursements to $13,518, for a total award of $30,443. [ 14 ] In Campsall , the defendant succeeded in its motion to set aside the noting for default, thereby forcing an adjournment of the trial to assess damages. The plaintiff sought costs thrown away on a “substantial indemnity” basis. Specifically, the plaintiff sought fees in the amount of $35,990.50 and disbursements in the amount of $3,525.02, for a total of $39,515.52.

In this assessment, Nadeau J. had the benefit of time dockets to assess the propriety of the amount claimed. After a review of the time dockets and relevant authorities, Nadeau J. assessed the total costs thrown away at $15,192.27, consisting of $11,667.25 in fees as well as the actual disbursements claimed. [ 15 ] The Ontario approach in awarding costs thrown away on a substantial indemnity or full recovery basis is not commonplace across Canada. In Nordstrom v Stenco Incorporated , 2015 ABQB 184 , a four-day trial was adjourned to allow the Court to address an application to disqualify the plaintiffs’ counsel.

That application resulted in case management proceedings in which the defendants were required to present evidence by a specific date. When they failed to meet the deadline, the plaintiffs sought costs on a solicitor and client basis. Michalyshyn J. sharply admonished the defendants but declined to award solicitor and client costs.

Instead, he awarded enhanced costs in the amount of $2,400, payable forthwith and in any event of the cause. [ 16 ] In Manitoba, a somewhat similar approach was followed in Telecommunication Employees Association of Manitoba Inc. v Manitoba Telecom Services Inc. , 2010 MBQB 13 , 249 Man R (2d) 96 . In that case, the trial of a significant and high profile civil action was adjourned due to the unavailability of the defendants’ expert report. Although defence counsel gave plausible explanations for the delay, Monnin C.J.Q.B. was satisfied that costs should be awarded.

However, he declined the plaintiffs’ request for solicitor and client costs amounting to $133,474. Instead, he assessed throwaway costs at $10,000 payable in any event of the cause as well as taxable costs related to the actual motion before him. [ 17 ] In Saskatchewan, there are few published authorities that address cost awards arising from adjourned civil proceedings. Aside from the decision in Pearson , I note the decision in Thole v McKenna , 1992 CarswellSask 600 (Sask QB) . In that case, the defendants sought costs from the plaintiff for two adjourned pre-trial conferences.

At the time of the second adjournment, the plaintiff appeared with an associate of the firm she had recently retained. The associate told the presiding pre-trial judge, Baynton J., that he had no brief, no medical information and no authority to discuss the action on its merits. This information was later confirmed by the plaintiff’s principal counsel, who spoke to the Court through a conference call. After describing the “blatant” manner in which the

plaintiff and her counsel ignored the rules and disregarded the Court’s earlier directions, Baynton J. was satisfied the defendants were entitled to costs on a thrown away basis, which he fixed at $400 for both pre-trial conferences. Having regard to the tariff in place at that time, this amount reflected a slightly enhanced award of taxable party and party costs for a pre-trial conference. [ 18 ] In the circumstances of the present case, there is little doubt that the plaintiff’s lack of diligence in collecting and giving notice of its expert evidence is contrary to the directions earlier given.

As such, it is entirely blameworthy. That said, the awards sought by the defendants are almost the equivalent of awards for solicitor and client costs for specific and discrete steps taken in trial preparation. In my view, the plaintiff’s blameworthy conduct does not rise to the level that it engages the four principles articulated in Siemens . Indeed, neither defence counsel argued otherwise. [ 19 ] Further, and perhaps more importantly, I am not persuaded that the Ontario approach applies here.

The relevant Ontario authorities leave the distinct impression that the Ontario Superior Court of Justice, in its application of Rule 57.01 , has little reticence in awarding substantial indemnity costs. The Ontario cases cited in this fiat suggest that such awards are generally made where the conduct of a civil litigant deserves censure but falls short of that which would call for solicitor and client costs.

In my view, that is not consistent with the approach this Court has taken in its consideration of Rule 11-1, or its predecessor provisions. [ 20 ] In saying this, I acknowledge that the Court’s discretion to award costs is broad enough to include situations that might justify enhanced costs, including full payment of disbursements wasted because of the conduct of the party at fault. I also acknowledge that there may well be circumstances where the conduct giving rise to wasted trial preparation may meet the principles identified in Siemens .

In such circumstances, as rare and exceptional as they would undoubtedly be, it may be warranted for a judge of this Court to award full recovery. Those circumstances, however, do not present themselves in this instance. [ 21 ] Moreover, at this stage of the proceeding, I also think it important that the Court not make an award that is so high that it could unduly diminish the financial utility of the plaintiff pursuing the action. A large costs award, payable forthwith, could unfairly provide the defendants with leverage with which to press for a more favourable settlement than might otherwise be available.

In my view, it is not for this Court to intrude in potential settlement negotiations, even inadvertently. Conclusion [ 22 ] In the end, and while I am not prepared to make an award based on the Ontario concept of substantial indemnity, I am persuaded that there should be awards of enhanced costs, in any event of the cause and payable forthwith. Simply stated, I fix the costs for the adjournment of this trial in the amount of $4,000, with $2,000 payable to the defendants Errol Castle and Castle Design and Marketing Services Ltd. and $2,000 payable to 101186119 Saskatchewan Ltd.

Such costs are awarded in any event of the cause and shall be paid within 60 days of the date this fiat is issued. [ 23 ] I also include a direction that this award of costs shall be without prejudice to the authority of the trial judge to revisit the amount of the award at the conclusion of the trial. By that time, there may be trial evidence that will cast better light on the circumstances of the adjournment.

Viewed in that light, the trial judge may: (1) wish to increase the amount awarded here; (2) offset part of the award by assessing some costs against one or more defendants; or (3) leave the award as is. [ 24 ] Finally, there should be a formal order taken out with respect to the adjournment of the trial and the award of costs. Rule 10-4 is not waived in respect of that order. J. R.W. ELSON