GARY CURTIS Applicant v. CANADIAN HUMAN RIGHTS COMMISSION AND THE BANK OF NOVA SCOTIA, 2019 FC 43

Date: 20190114 Docket: T-1316-18 Citation: 2019 FC 43 Ottawa, Ontario, January 14, 2019 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: GARY CURTIS Applicant and CANADIAN HUMAN RIGHTS COMMISSION AND THE BANK OF NOVA SCOTIA Respondents ORDER AND REASONS I. Overview [ 1 ] By way of motion, Mr. Curtis, who represents himself in this matter, appeals the November 15, 2018 Order of Prothonotary Aalto.

He seeks an order: A . setting aside or varying the award of costs to the Bank of Nova Scotia [BNS] in the amount of $1000; B . setting aside or varying the orders granting the Canadian Human Rights Commission [CHRC] leave to withdraw the motion that it be removed as a respondent and holding that costs not be awarded for or against the CHRC; C . setting aside or varying the Prothonotary’s Order disallowing a number of proposed amendments to the Notice of Application; D . setting aside the Prothonotary’s Order that the Application proceed as a specially managed proceeding; E . granting an extension of time and setting timelines for the completion of steps in the Application; and F . awarding costs of the motion.

II. Standard of Review [ 2 ] A prothonotary’s order is to be reviewed against a standard of palpable and overriding error where the issues raised involve questions of fact or mixed fact and law. Correctness is the standard to be applied to extricable questions of law ( Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 at paras 27 , 66).

The palpable and overriding error standard is highly deferential ( Cobalt Pharmaceuticals Company v Bayer Inc , 2015 FCA 116 at para 53 ). [ 3 ] The applicant has failed to demonstrate any error of law or any palpable and overriding error of fact or mixed fact and law. The motion is dismissed for the reasons that follow . III. Analysis [ 4 ] Mr. Curtis argues that he was partially successful on his motion before the Prothonotary as some of his amendments were allowed. He submits that, given this mixed success, there should not have been an award of costs to the respondent, BNS.

He states that the effect of the costs award was to penalize a self-represented litigant.

He further argues that there should have been an award of costs against the CHRC, which was allowed to withdraw its motion on a without-costs basis. [ 5 ] Rule 400(1) of the Federal Courts Rules , SOR/98-106 , provides that the Court has “full discretionary power over the amount and allocation of costs.” Costs are quintessentially discretionary ( Alani v Canada (Prime Minister) , 2017 FCA 120 at para 11 , citing Nolan v Kerry (Canada) Inc , 2009 SCC 39 at para 126 ). [ 6 ] The motion before the Prothonotary to amend included proposed amendments seeking an order of mandamus against BNS that, if granted, would require it to preserve and retain documents.

The amendment was disallowed, the Prothonotary stating “[t]he Court cannot order BNS to produce or preserve that which they do not have.” The Prothonotary found that there was no evidence BNS had not preserved evidence and that Mr. Curtis had received the documentation BNS possessed. [ 7 ] Mr. Curtis’ motion, as it related to the respondent BNS, was wholly unsuccessful. BNS had opposed the amendment. In doing so, it sought costs in the amount of $1000 on the basis that it was successful and that the Court should send a message—frivolous motions would not be tolerated. Mr.

Curtis has simply demonstrated his disagreement with the Prothonotary’s exercise of discretion. Disagreement does not amount to a palpable and overriding error of fact or mixed fact and law or an error in law.

[ 8 ] Mr. Curtis has also failed to demonstrate a palpable and overriding error of fact or mixed fact and law or an error in law arising from the absence of a costs award against the CHRC. The record indicates that the CHRC did not seek costs on the motion and opposed an award of costs against it. It is also indicated that the CHRC motion was withdrawn on agreement on a without-costs basis. [ 9 ] I now turn to the disallowed amendments including the proposed amendment that followed the file number at paragraph 2.

In addressing the proposed amendments, the Prothonotary noted many of them were not within the jurisdiction of the Court or they formed part of the grounds for seeking the writ of mandamus and could therefore be addressed in that request. This conclusion was available to the Prothonotary and, again, Mr. Curtis has not demonstrated any basis for intervention on appeal. [ 10 ] Mr. Curtis also takes issue with the Prothonotary’s Order that the Application be specially managed.

He states that the matter has been delayed and that special management will only further delay proceedings. [ 11 ] Rule 384 provides that the Court may “at any time” order that a proceeding be specially managed. Having reviewed the history of this matter, I am of the view that it was unquestionably open to the Prothonotary to so order. [ 12 ] This Application was filed on July 19, 2018. Between July 19, 2018 and December 4, 2018, the Federal Court’s record of entries in respect of this matter reflects more than 120 entries. In oral submissions on this motion, the respondents highlighted that Mr.

Curtis has set matters down for hearing without consulting them and that in bringing this motion, Mr. Curtis himself seeks an order establishing timelines for the filing of materials; these are matters that can be appropriately managed and addressed by a case management judge. No error has been demonstrated. IV. Costs [ 13 ] BNS has sought costs in the amount of $2000 and has submitted a bill of costs. In advancing its position, BNS argues that the Prothonotary’s cost award was made to deter improper motions, yet Mr. Curtis’s reaction was to bring this motion.

BNS submits a significant cost award should follow. [ 14 ] I am satisfied that this motion was unnecessary and that an award of costs is warranted. However, in all of the circumstances, I am of the view that $2000 is excessive. Costs are awarded to BNS in the amount of $900 to be fixed and payable forthwith. [ 15 ] In keeping with its role as a public interest litigant, the CHRC has maintained the position that it does not seek costs and that costs should not be awarded against it. No costs are awarded in favour of the CHRC. ORDER THIS COURT ORDERS that : 1 . The motion is dismissed; 2 .

Costs are awarded to the Bank of Nova Scotia in the amount of $900 fixed and payable forthwith; and 3 . No costs are awarded to the Canadian Human Rights Commission. "Patrick Gleeson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1316-18 STYLE OF CAUSE: GARY CURTIS v CANADIAN HUMAN RIGHTS COMMISSION AND THE BANK OF NOVA SCOTIA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: DECEMBER 4, 2018 ORDER AND REASONS: GLEESON J.

DATED: January 14, 2019 APPEARANCES : Mr. Gary Curtis For The Applicant (ON HIS OWN BEHALF) Mr. Daniel Poulin For The Respondent (CANADIAN HUMAN RIGHTS COMMISSION) Mr. Ian Dick FOR THE RESPONDENT (THE BANK OF NOVA SCOTIA) SOLICITORS OF RECORD : Mr. Brian Smith Senior Counsel Legal Services Division Canadian Human Rights Commission Ottawa, Ontario For The RESPONDENT (CANADIAN HUMAN RIGHTS COMMISSION) Hicks Morley Hamilton Stewart Storie LLP Toronto, Ontario For The Respondents (THE BANK OF NOVA SCOTIA)