Annapolis (County) v. Gillis, 2023 NSSM 46

In The Small Claims Court OF NOVA SCOTIA AND IN THE MATTER OF A TAXATION Citation: Annapolis (County) v. Gillis, 2023 NSSM 46 Date: 20230628 Docket: SCCH 505244 Registry: Halifax Between: Municipality of the County of Annapolis Applicant (Client) v. Gilbert McGloan Gillis Respondent (Lawyers) TAXATION DECISION Adjudicator: Eric K.

SloneHeard: Via zoom in Halifax, Nova Scotia on July 11, 12, 13, October 6, 7, 20 and 21, 2022; writtensubmissions received November 18, 2022, December 14, 2022, and January 11, 2023Counsel: Richard Norman, for the Applicant (Client) Rodney Gillis, K.C., for the Respondent (Lawyers) By the Court: Introduction [1] In this proceeding, the Applicant Municipality of the County of Annapolis (“Annapolis County” or “Annapolis”) is taxingsome 30 legal accounts rendered to it by the Respondent Gilbert McGloan Gillis (“hereafter “GMG”) rendered between June 2018 andDecember 2020, totalling some $406,398.57. [2] Included in those accounts were fees for Rodney Gillis’s services in the amount of $310,860.00.

The balance consists ofbilling by other lawyers in the firm (at that time), charges for paralegal services, disbursements and HST. Those accounts were paidsome time ago. [3] A further account in the amount of $28,824.75 was rendered by GMG on December 8, 2021, which has not been paid andwhich was added to the Notice of Taxation by an amendment to same on February 17, 2022. This last bill was rendered less than a monthafter I heard and determined a challenge by Mr. Gillis to the court’s jurisdiction, which is reported at Annapolis (County) v. Gillis, 2021NSSM 61 . In that decision I found that Mr.

Gillis, despite being a member of the New Brunswick bar, was subject to having hisbill taxed in Nova Scotia at the behest of his Nova Scotia client. [4] I will comment further on that last account in due course. [5] The hearing of this taxation took place via zoom over the course of seven days in July and October of 2022. Argument wasmade by way of written submissions received by me on November 18, 2022, December 14, 2022, and January 11, 2023 respectively.Although lengthy, the hearing was much shorter than Mr.

Gillis initially predicted in his Response to the Notice of Taxation, where heestimated that he would need 13 weeks of hearings, five days per week, to justify his accounts. [6] In this decision I will borrow freely from the jurisdictional decision in setting out some background facts and will sometimesquote from the briefs submitted to me. The parties [7] The respondent GMG is a law firm based in Saint John, New Brunswick. One of its partners at the relevant time was Mr.Rodney Gillis, K.C. For convenience I will refer to him as “Mr. Gillis.”[1] It appears that Mr.

Gillis is now the only member of that firm. [8] Mr. Gillis is a member of the Law Society of New Brunswick, and not of the Nova Scotia Barristers Society, though likealmost every other licenced lawyer across Canada he enjoys the privilege of practicing in Nova Scotia on a limited (and fairly liberal)basis pursuant to the so-called Mobility rules.

[ 9 ] Mr. Gillis is an experienced counsel with particular expertise, it appears, in municipal law, defamation and litigation generally. [ 10 ] Annapolis County is a municipal entity providing services to parts of Annapolis County, with its main office in the Town of Annapolis Royal.

As I understand the arrangement, Annapolis County provides services to areas within the county not otherwise covered by local municipal governments within the county, such as, for example, the Town of Middleton or the Town of Annapolis Royal itself. [ 11 ] Annapolis County has (or had at the relevant time) complex and sometimes fractious relationships with other municipalities in the county and in neighbouring Kings County.

These include a dispute over something called (for short) Valley Waste, as described in a 2018 Supreme Court of Nova Scotia court case involving those various municipalities, Kings County (Municipality) v. Annapolis County (Municipality) , 2018 NSSC 303 : [ 1 ] Several municipalities in the Annapolis Valley got together in 1999 and created a municipal service corporation to provide solid waste management for their communities. The entity is called the Valley Region Solid Waste-Resource Management Authority or just Valley Waste.

Valley Waste owns a property in Lawrencetown, Annapolis County that served as the Western Transfer Station. Recently the parties got into a dispute about the running of Valley Waste. Annapolis County gave notice that they wanted to withdraw from the intermunicipal service agreement that governed the arrangement. Annapolis County stopped paying fees to Valley Waste and in August 2018 Valley Waste stopped providing services to residents of Annapolis County.

Annapolis County then gave Valley Waste a notice that the Western Transfer Station in Lawrencetown was being expropriated by Annapolis County. [ 2 ] The other municipalities applied for judicial review of the decision of Annapolis County Council to expropriate the property. The Municipal Government Act , SNS 1998, c. 18 does not permit a municipality to expropriate the property of another municipality.

They argue that the property in Lawrencetown owned by Valley Waste is the property of a municipality. [ 12 ] It is arguably relevant (and at least of some interest) that this litigation was decided in favour of the other municipalities, and Annapolis’s effort at expropriation was disallowed. As such it was forced to explore other options for its waste disposal needs, some of which involved Mr. Gillis. [ 13 ] It is not disputed that Mr.

Gillis had been retained in connection with this festering dispute earlier in 2018 to provide advice and other legal services to Annapolis County, at the invitation or suggestion of Annapolis County’s then- Chief Administrative Officer John Ferguson and was tasked with assisting or complementing Annapolis County’s local legal counsel, Bruce Gillis. [ 14 ] Mr. Gillis understood that because matters were (allegedly) highly political, Annapolis County was looking for someone outside the county, if not outside the province, to offer advice and other services. [ 15 ] Mr.

Gillis testified that he was approached by John Ferguson. Mr. Gillis knew Mr. Ferguson from unrelated dealings some years ago when Mr. Ferguson was working in New Brunswick. [ 16 ] Upon being asked to provide legal services, Mr. Gillis sent Mr. Ferguson an Engagement Letter and Retainer Agreement (“the Retainer Agreement”), which he drafted and which Mr. Ferguson signed on behalf of Annapolis County. Mr.

Gillis described it as a “standard retainer agreement” which I take to mean that most of the language used was part of a precedent in common use in his office, with modifications made according to the unique circumstances of the engagement. [ 17 ] The “Re: line” sets out what the retainer was in reference to: Re: Matters relating [to] Waste Valley Resource Management Authority (“the Authority”) and the Intermunicipal Services Agreement in relation to the Authority [ 18 ] It then goes on to elaborate: All business and legal matters handled by our law firm on behalf of Municipality of the County of Annapolis (‘Annapolis’) including those instructed by Tim Habinski and or John Ferguson or agent of Annapolis from time to time.

All advice in relation to Annapolis and its business and legal matters. All contracts, negotiations, proposals and other obligations of Annapolis including advising, meetings, drafting and attending on execution of documents: All court, administrative body or other proceedings and representation of Annapolis and any or all of the persons who represent Annapolis’s interests, including all hearings, examinations for discovery, trials, research, advising, commencing proceedings, prosecuting proceedings and all legal representation related thereto.

All travel, meetings and other services in relation to the foregoing. [ 19 ] Under “Scope of Employment” it states: We are instructed by Annapolis and we are hereby authorized to assume conduct of the legal matters presented to us for representation as your solicitors. In the course of our representation of Annapolis, we will provide reports and updates to you on an interim basis when the matters are active.

You authorize us to do all things necessary relating to the legal matters affecting Annapolis, all for the protection of Annapolis’ interest, and to act as Annapolis’ solicitor, either in such manner as the authorized directors, officers or agents of Annapolis instruct or otherwise, only in the event of an emergency, as we consider expedient in those instances where authorized persons are not readily available to instruct us and cannot be found. Our firm’s objective is to work with you in achieving your legal goals as efficiently as possible.

By signing this agreement, you agree that where our law firm is instructed to perform legal services on behalf of Annapolis, we shall receive and be entitled to rely upon instructions provided by any director, officer or agent of Annapolis until we are presented with a duly passed resolution of the directors acting for Annapolis (or companies) changing the same. As you may already be aware, when acting for Annapolis, we will not be able under our Law Society Rules to represent the individual directors, officers or shareholders of Annapolis in relation to Annapolis matters.

Our undivided loyalty must be to Annapolis and [its] best interests only.

[ 20 ] The Retainer Agreement set out the hourly rates applicable to Mr. Gillis ($450.00) as well as lower rates for two other lawyers in the firm. It also set out the rate of $75.00 for paralegal/support staff. [ 21 ] This retainer letter was signed first by Rodney Gillis on the 24th of May 2018, and then by Mr. Ferguson on behalf of Annapolis on June 15, 2018. [ 22 ] There is no evidence to suggest that Mr. Ferguson lacked the legal authority to contract on behalf of Annapolis, though the wisdom of his entering into such an arrangement was later questioned by Annapolis. There is no evidence that Mr.

Ferguson obtained the explicit approval of anyone on Council at the time the retainer was made, though at least some of the members of council had to have known at some point. Still, Mr. Ferguson’s employment was terminated by a newly elected Council in December 2020, in part because of questions about this arrangement. There was litigation initiated by Mr. Ferguson on account of his employment having been terminated, which remains outstanding, as far as I am aware. Mr.

Gillis and Bruce Gillis were both named as third parties in that proceeding. [ 23 ] What ensued after the Retainer Agreement was signed was two and a half years of monthly invoicing by Mr. Gillis for services allegedly provided on the Valley Waste file, as well as on numerous other subjects that came up from time to time. [ 24 ] I do not think it is an exaggeration to say that what may have started as a retainer to assist with a discrete dispute involving Valley Waste, morphed over time to become a standing consulting-type arrangement whereby Mr. Gillis assisted Mr.

Ferguson (at times) almost daily on many of the issues that he faced as CAO. As this relationship developed, Mr. Gillis was sending or receiving multiple emails at all times of the day or evening, and/or making and fielding phone calls also at all hours. Much of what was being sought was legal and business advice, broadly defined, but this shaded into giving advice or feedback on public relations or political issues. At times Mr. Gillis acted as a sounding board or confidant for Mr.

Ferguson, performing what is sometimes pejoratively referred to as “client hand holding.” Often, he was just copied on emails ostensibly keeping him informed on what Mr. Ferguson was doing, had done, was thinking of doing, or just what he was thinking. [ 25 ] Mr. Ferguson may well have to answer questions in another forum about why he made such extensive use of Mr. Gillis’s time, often to perform tasks that did not objectively speaking require the input of a senior out-of-province litigator, such as editing letters or press releases. [ 26 ] Mr.

Gillis’s effort to justify his bills rested in part on showing how many emails he sent or received on various days, corresponding to his hourly charges for that day. [ 27 ] The proliferation of email as a primary method of communication has created its own set of problems concerning the way legal services are charged and their value assessed. Whereas in a bygone era it took some effort and expense to send actual letters, emails are cheap and fast. Even so, an email may take an hour to compose, or a minute.

A received email may require considerable time to digest, or it may merit no more than a moment of recognition. The number of emails received and sent on a given day is in itself an almost meaningless measure of work done, much less a measure of the value of work done. Add to that the sheer number of emails received which are merely copies of emails directed to others, often as a result of the careless use of the “reply all” button. Such emails are often mere distractions. [ 28 ] It is telling that Mr.

Gillis testified that upon being retained he agreed “to provide advice from time to time,” which ended up in the exchange of thousands of emails and many hours of phone calls over the course of the relationship. [ 29 ] It is not hard to understand how Mr. Gillis may have been drawn into this unusual relationship, but the question arises as to whether he had a professional duty to curtail this relationship, or at least to recognize that he could not justify charging Annapolis $450.00 per hour to provide virtually unlimited assistance to Mr.

Ferguson in the performance of his duties. [ 30 ] It was after a municipal election in late 2020 that the new Council took office and questioned this relationship. As mentioned, Mr. Ferguson’s employment was summarily terminated. As well put in Annapolis’s brief: Mr. Ferguson dealt with legal matters for the County virtually exclusively. With him gone in December 2020, the County attempted to determine why it had been paying hundreds of thousands of dollars in legal fees to GMG. The GMG invoices prepared by Mr. Gillis did not answer that question.

The narratives that accompanied each time entry contained no information at all about the work done. The entries said only, for example, “Correspondences and review of documents” or “Correspondence or telephone conversations”. There was no way to know who the correspondence was to or who the phone call was with. The lack of information on the invoices was deeply concerning. The notice of taxation was filed in March 2021, approximately three months after GMG was terminated. The accounts themselves [ 31 ] Expanding on this point, Mr.

Gillis’s accounts provide very little information about what was done on any given day. The bills themselves have a tendency to recite the same description on every day of any given month, rendering those descriptions largely meaningless. [ 32 ] For example, on the very first invoice dated June 15, 2018, covering work done in May and June 2018, the first 13 days listed have the same description “correspondences and review of documents” with numbers of hours ranging from .4 to 3.5. There is nothing, for example, to indicate why Mr.

Gillis spent 3.5 hours engaged in correspondences and review of documents on May 25, as opposed to June 3 when he shows .4 of an hour. [ 33 ] Later on in that bill he does particularize the fact that he made an attendance in Nova Scotia for a meeting. On these occasions when Mr. Gillis travelled to Nova Scotia his recollections were clear, as might be expected. [ 34 ] That same description “correspondences and review of documents” applies to every one of the entries during the period of June 15 to July 30, contained on an invoice dated August 10, 2018.

Again, there is nothing on the invoice itself to indicate what

documents were reviewed or what correspondence was sent or received. [ 35 ] In the next in the series of invoices, the standard descriptor next to each of the days was “correspondence, drafting and review of documents.” This descriptor was not an improvement in terms of providing any information. [ 36 ] On the next account in the series, dated October 16, 2018, the description next to each of the dates reads “correspondences or telephone conversation and review.” This is equally unedifying.

The same descriptor was used in the bill dated December 11, 2018, and also in the account dated November 19, 2018. [ 37 ] Looking at the bill dated December 31, 2018, the entries next to the various days billed reads only "correspondences.” [ 38 ] In January 2019 the descriptor is “correspondences and review.” [ 39 ] In an account dated March 11, 2019, with one exception every entry reads “correspondences and review.” The one exception involves February 18, 2019, where Mr.

Gillis says he spent 6.8 hours drafting a defence and counterclaim. [ 40 ] During the month of March 2019, the account entries all state “correspondences, telephone conversations and review.” Similar entries can be found on the account for work done in April 2019, May 2019, June 2019 and July 2019. [ 41 ] In August of that year the blurb mostly reads “correspondences, telephone conversations, review and drafting pleadings.” [ 42 ] For the month of September 2019 the blurb “correspondences, telephone conversations and review” appears next to each of the eight days for which time was billed. [ 43 ] During the month of October 2019, there is a little more variation.

On October 1, 2019 Mr. Gillis billed for telephone conversations plus an in camera meeting.

The balance of the month consisted of “correspondence re publications and response” on each of 23 days. [ 44 ] Billing for the month of November 2019 consisted of “correspondences; telephone conversations.” [ 45 ] In December 2019 there was some billing shown as “correspondences; document review,” plus specific charges for his attendance in Nova Scotia at a Council meeting. [ 46 ] In January 2020, the entirety of the invoice is made up of “correspondences” . [ 47 ] For the month of February 2020, a great deal of time was billed with the descriptor next to each of the dates being “correspondences re Western transfer station/environment.” Similar entries are made in the accounts covering the months of March 2020, April 2020, and, with a few minor particulars, for the month of May 2020.

It is of some interest that the particularized entries during that month were made by a junior lawyer in Mr. Gillis's office, and not by Mr. Gillis himself whose entries contained the same generic descriptor. [ 48 ] The same pattern presents itself in the accounts covering the months of June 2020 and July 2020. [ 49 ] In August 2020, with one small exception every entry consisted of “correspondences re environmental issues.” [ 50 ] During the month of September 2020, the description in the account differs a bit.

On most days the description is “correspondences, drafting and research re appeal.” That description covered 11 days in September, 14 days in October, plus another 15 days in November. Four more days in December received the same description. Anyone looking at these entries would conclude that Mr. Gillis spent parts of 40 days drafting and performing research for an appeal at a cost of tens of thousands of dollars to the client. I have little faith that such work took place on each of the days where the description is found.

If he did spend parts of 40 days doing research and drafting for an appeal, this would have been on its face unreasonable, given how little was accomplished. [ 51 ] In the several days leading up to being terminated Mr. Gillis appears to have spent considerable time drafting documents relating to an appeal that he must have known he would never be actively involved in, given that he was on the verge of having his services terminated. [ 52 ] It is not enough to say that the client must have known what he was doing. Mr. Gillis was not working for Mr. Ferguson.

He was working for Annapolis, and he had to have known that in the end he would be answerable not just to Mr. Ferguson but to others in the county. [ 53 ] I appreciate that billing practices vary between lawyer to lawyer, and some legal accounts may be tediously overlong in reciting everything that the lawyer has done. Equally so, we have all seen accounts that say nothing more than “TO MY FEE” with a dollar figure following that. There is a happy medium. In terms of transparency and full disclosure, Mr. Gillis’s accounts contain almost no useful information.

The boilerplate recital next to a day on the bill says nothing useful at all in terms of pointing to the actual work done. Unfortunately, there is nothing else in writing to back up these entries. Mr. Gillis testified that he does not keep time sheets, and whatever documentation he may have used to allow him to total up his hours on any given day, if it ever existed, did not survive.

So on a day when he docketed, for example, 3.5 hours, he largely asks us to take his word that this is the amount of time that he spent. [ 54 ] I acknowledge the fact that if a bill contains little meaningful information about how the lawyer’s time was spent, that does not mean that the time was not spent, or not spent productively. It just makes it harder for the lawyer to justify the bill and invites doubt. [ 55 ] As such, the taxation exercise became one of Mr. Gillis directing the court and counsel for Annapolis, to opening up virtually every email that he either sent or received, allowing Mr.

Gillis to share with us generally what he was engaged in. This was extremely tedious and time-consuming. While it did bring to life the fact that Mr. Gillis became deeply engaged in the projects that Mr. Ferguson involved him in, it also became a window into what Mr. Gillis allowed the relationship to become. It was hard not to conclude that Mr.

Gillis lost sight of his role as external counsel, with a duty to charge only reasonable fees for his services. There is not a sense that Mr. Gillis ever wrote off any of his time, or considered whether his time was being productively used. Legal framework [ 56 ] The Nova Scotia Court of Appeal succinctly placed the onus on the lawyer to justify the reasonableness of his bill, in Mor- Town Developments Ltd. v. MacDonald , 2012 NSCA 35 : 49 To the extent that there remains any confusion regarding who bears the onus during the taxation of a lawyer's account let me be clear.

The onus of proving the reasonableness of an account should always rest with the lawyer. The lawyer knows what was done, by whom and when. The lawyer knows how long it took to complete the task(

s) and what fee was charged to do it. The lawyer will also know why the task or particular action was necessary. Rarely would a client be possessed of such information. To expect the client to “prove” the unreasonableness of the work done by the lawyer would neither be practical nor fair. In

summary, whether the taxation is initiated by either the client or the lawyer, the lawyer bears the onus of proving that his or her account is lawful, and reasonable, in all of the circumstances. [ 57 ] To consider what is reasonable, one need look no further than the Nova Scotia Civil Procedure Rules which codifies principles that have been established over the years: 77.13 Counsel’s fees and disbursements: entitlement and assessment

(1) Counsel is entitled to reasonable compensation for services performed, and recovery of disbursements necessarily and reasonably made, for a client who is involved in a proceeding.

(2) The reasonableness of counsel's compensation must be assessed in light of all the relevant circumstances, and the following are examples of subjects and circumstances that may be relevant on the assessment: (

a) counsel's efforts to secure speed and avoid expense for the client; (

b) the nature, importance, and urgency of the case; (

c) the circumstances of the person who is to pay counsel, or of the fund out of which counsel is to be paid; (

d) the general conduct and expense of the proceeding; (

e) the skill, labour, and responsibility involved; (

f) counsel's terms of retention, including an authorized contingency agreement, terms for payment by hourly rate, and terms for value billing. [ 58 ] Mr. Gillis’s effort to justify the reasonableness of his bill can largely be reduced to a short list of justifications: a. The hourly rate was agreed to in the Retainer Agreement. b. Mr. Gillis is a senior lawyer with 40+ years of experience. c. Mr. Ferguson was aware of what Mr. Gillis was doing, including the fact that he had all the emails and phone records and other work product. d.

The time spent was required in relation to the growing and changing issues upon which he was consulted. e. The matters involved were complex and of considerable importance to the client. f. There were considerable sums of money at stake. g. His efforts helped to produce large cost savings to Annapolis. h. The matters for which he was engaged were often urgent. [ 59 ] Annapolis in its brief particularizes many of its concerns: a. There are no pre-bills or timesheets to support any of the invoices. The County has only the entries on the invoices, and these contain virtually no information. b. Mr.

Gillis lacked the necessary experience to charge the fees that he did charge. He testified that he did not have experience dealing with inter-municipal disputes in Nova Scotia. c. Much of the work done was outside of the scope of the retainer agreement. d. The results obtained by GMG (to the extent that there were results) did not justify the fees charged. e. GMG was in a conflict from September 2020 through to the end of its retainer in December 2020 when Mr. Gillis was hired by Edward Farren to sue Alan Parish. It was a conflict for Mr. Gillis to do so from the time the lawsuit was filed on September 28, 2020.

The conflict became even more severe when Mr. Parish was elected to Council and became Warden in or around October 2020. All fees from September 28, 2020, forward should be repaid to the County.

f. There are also more specific concerns relating to Mr. Gillis’s evidence of the work he did. These concerns fall into two categories: (

a) There are numerous days where work described relates to emails or correspondence but there are no emails or correspondence in the file. Mr. Gillis appeared to concede at the end of the hearing that there were a number of days that fell into this category. (

b) There are many days where the fees charged were not reasonable in relation to the work done based on the time billed and the correspondence in the file. [ 60 ] The County put a great deal of work into examining Mr. Gillis’s time entries on what I will call a granular basis. Counsel has prepared a spreadsheet noting time spent on about 270 days which he argues is excessive, in light of what was described by Mr. Gillis as having been done. As explained in counsel’s brief, the Spreadsheet was prepared contemporaneously with Mr. Gillis’s testimony and revised afterwards for clarity.

It contains a complete list of days/entries which the County says the fees charged are not reasonable. It does not contain every single day/entry on the invoices. Annapolis concedes that Mr. Gillis did do work on some days when the fees charged were reasonable. Those days do not appear on the Spreadsheet. This is a list of challenged entries only. [ 61 ] Based on these criticisms and comments Annapolis argues that Mr. Gillis’s accounts should be reduced by more than 50%. [ 62 ] I do not propose to recite every entry on the spreadsheet. I find that many of them have merit.

They conform to the questions that arose in my mind during the taxation, to the effect “how could Mr. Gillis have taken so long to do what he is describing.” [ 63 ] Rather than looking at it on a day-to-day basis, I intend to reflect this concern by way of a global reduction in the bill, which I will arrive at after considering other arguments. The taximeter approach to billing [ 64 ] Mr. Gillis does not appear ever to have given any consideration to whether his accounts were reasonable in light of the results being achieved.

This is in part because he utilized what has been sometimes referred to (critically) as a taximeter approach to billing. What started as a retainer to assist with a particular more-or- less defined dispute morphed into something that more resembled acting as a personal adviser to Mr. Ferguson on whatever project he happened to be engaged in. For billing purposes, hours were added up on a monthly basis and billed at his hourly rate. In other words, he simply billed whatever time he says he spent, without adjustment. The problem with that approach was discussed by the Court in Robertson v. Ostrander , [1992] S.J.

No. 450 (Sask. Q.B.) : 3 There is however an obligation on a lawyer to protect his client from the tendency to take up too much of the lawyer's expensive time, and from the tendency to allow a computerized timekeeping system to mandate the amount of the bill. The timekeeping system, however effective in providing a guideline to the time spent on a matter, has no value whatever in weighing the necessity or advisability of that time having been spent nor can it have an eye to the results achieved.

Simply to allow the computer to make the decision as to the amount to be charged deprives the client of the wisdom of his counsel in giving consideration to those factors which the courts have held over the years to be material in deciding the amount of the lawyer's account. [ 65 ] I echo those sentiments. [ 66 ] I will add that the lack of time sheets prepared on a day-to-day basis makes it all the harder to justify time based billing. Daily time sheets prepared at the end of a day or upon completion of a task have the evidentiary force of business records. Mr.

Gillis’s recollections two, three or four years after the fact, prompted only by the emails that passed during that day, are less convincing. Other specific Annapolis arguments [ 67 ] I will set out Annapolis’s arguments here, all of which I accept have some degree of merit. [ 68 ] Results achieved: Annapolis questions whether the results achieved in the various pieces of litigation justifies the fees charged. They identify five main pieces of litigation arising from the various Valley Waste disputes. In the documents there are file materials relating to each of these proceedings.

They are as follows: a. 3247921 Nova Scotia Limited - Appeals 500916 and 500918 (“Ministerial Appeals”) b. Annapolis ats. County of Kings, et al - Judicial Review (“Judicial Review) c. Annapolis ats. County of Kings, et al - Ken 491146 (“Kings Action”) d. Annapolis ats. Her Majesty - M06002 (“Provincial Prosecution”) e. Annapolis ats. Valley Waste - Hfx 491265 (“Valley Waste Action”) [ 69 ] Annapolis argues that “ with the exception of the Judicial Review which was concluded in or around November 2018, none of these other proceedings appear to involve work beyond the pleadings stage.

The lack of success and the lack of advancement are more strong indications of the unreasonableness of the fees charged. ” [ 70 ] Annapolis says that “ with respect to the appeals of the ministerial orders brought by Albert Rice's company, these appear to fall outside of the retainer agreement between the County and Mr. Gillis insofar as Mr. Gillis was representing an unrelated company appealing ministerial orders. ” [ 71 ] Annapolis argues that “ the notices of appeal prepared by Mr. Gillis are perfunctory documents.

His review of the record and preparation of the factum appear to have been done far earlier than necessary and do not appear to be the result of any instructions provided by Mr. Ferguson. In addition, all of this work was done after [Mr. Gillis] was in a clear conflict having sued the Warden of the County. ”

[ 72 ] In the Annapolis ats. County of Kings, et al - Judicial Review, quoted from earlier, Mr. Gillis appeared with Bruce Gillis at the hearing of this judicial review in or around November 2018. Bruce Gillis was the solicitor of record and Rodney Gillis essentially sat as second chair. As noted, the judicial review was unsuccessful from Annapolis’s point of view, and Annapolis did not appeal, though there was consideration given to an appeal. Annapolis says that the fees charged by Mr. Gillis in relation to this work, given the outcome, are not reasonable.

There is some merit to this criticism. [ 73 ] The next proceeding was Annapolis ats. County of Kings, et al - Ken 491146. A Notice of Action was served by the Municipality alleging that the County had violated the Inter-municipal Services Agreement relating to Valley Waste. Mr. Gillis assisted in preparing a defence and counterclaim. The litigation did not appear to proceed after pleadings closed. There was no evidence relating to discovery examination or trial preparation. Annapolis says that the fees charged in relation to this proceeding are far out of proportion to the status of the litigation.

There is some merit to this criticism. [ 74 ] The file relating to the charges being brought against the County is referred to as Annapolis ats. Her Majesty - M06002. The County was charged with various violations of the Environment Act and its Regulations. The charges all appear to relate to the County continuing activity which required approval from the Department of Environment. The activity was the management or operation of a solid waste management facility. Mr. Gillis’s evidence was that Bruce Gillis took the lead on this proceeding. Mr.

Gillis appears to have little involvement with this matter except perhaps advising Mr. Ferguson that the Department could not rescind an approval made in error. Annapolis says that the fees charged in relation to this proceeding are far out of proportion to the status of the litigation. There is some merit to this criticism. [ 75 ] Lastly, Annapolis refers to Annapolis ats. Valley Waste - Hfx 491265. In this proceeding, Valley Regional Solid Waste Resource Management Authority sued the County.

The allegations are similar to those in the lawsuit brought by Kings County and other Municipalities in the region in relation to breaches of the Intermunicipal Services Agreement. Bruce Gillis is again listed as solicitor of record. The defence and counterclaim is virtually identical to the one filed in the Kings Action. Annapolis says that the fees charged in relation to this proceeding are far out of proportion to the status of the litigation. Annapolis says that none of these proceedings advanced, with the exception of the judicial review; they were all in their infancy.

There is some merit to this criticism. [ 76 ] Annapolis also notes that Mr. Gillis charged for work outside of the four corners of these proceedings including many additional one-off matters. Among them: complaints to CBC over its reporting; complaints and appeals relating to the RCMP's refusal to charge the CEO of Valley Waste; reviews of transcripts of meetings of unhappy citizens; advice to Mr. Ferguson about whether he should disclose his employment contract to the new Council.

Annapolis argues that none of these additional matters were actions taken in the best interest of the County and they did nothing to advance the County's position with respect to any dispute relating to Valley Waste. There is some merit to this criticism. [ 77 ] Mr. Gillis defends his work generally on the basis of the importance to the client and the complexity of the matters undertaken. With respect, my impression is that Mr. Gillis overstates the value of his input into the matters at issue and ignores the extent to which he was drawn into Mr. Ferguson’s orbit and spent copious amounts of time indulging Mr.

Ferguson’s apparent need to run everything he was doing by outside counsel. This may be mostly an issue between Mr. Ferguson and Annapolis, but Mr. Gillis ought to have recognized that his time was not being well spent on behalf of Annapolis. [ 78 ] I also find that Mr. Gillis allowed himself to be drawn into a conflict of interest when he assisted Mr. Ferguson in creating (and concealing) an employment contract that made it difficult and potentially very expensive for Annapolis to terminate his employment. Mr. Gillis’s actions support a view that his loyalties to Mr.

Ferguson outweighed his loyalties to Annapolis, his actual client. [ 79 ] Annapolis also points to an additional conflict of interest. Counsel writes in his brief “ GMG was in a conflict from September 2020 through to the end of its retainer in December 2020 when Mr. Gillis was hired by Edward Farren to sue Alan Parish [for defamation]. It was a conflict for Mr. Gillis to do so from the time the lawsuit was filed on September 28, 2020. The conflict became even more severe when Mr. Parish was elected to Council and became Warden in or around October 2020.

All fees from September 28, 2020, forward should be repaid to the County. ” [ 80 ] Mr. Gillis was questioned about this in cross-examination, and he did not concede that he had done anything wrong. I believe a more scrupulous lawyer would have had a concern about taking on a private retainer against an individual who was running for, and was then elected to, Annapolis Council. [ 81 ] The last month of Mr. Gillis’s retainer was a busy one. Mr. Gillis billed for 49.7 hours of his time over a ten-day period ending December 17, 2020. By early December Mr. Gillis was aware that the new Council was looking into Mr.

Ferguson’s activities and that his employment was in jeopardy. Mr. Gillis was assisting Mr. Ferguson in resisting sharing information with the new council. I find it strange that there would be this flurry of activity by Mr. Gillis involving research and drafting of documents relating to the Ministerial Appeals at a time just before the holidays, where the person who was instructing him was on such thin ice and where a new Council was questioning the relationship. [ 82 ] In sum, I find that there is a degree of unreasonableness that permeates Mr. Gillis’s billing, which will be addressed via a global reduction.

The December 8, 2021 bill for phone calls [ 83 ] As noted earlier, in December 2021 after the decision on jurisdiction was released, Mr. Gillis issued an account for 55.7 hours of phone calls made between June 2018 and October 2020. He says that this only became known after he obtained copies of Mr. Ferguson’s detailed cell phone records. This account has not been paid and is subject to taxation. [ 84 ] The evidence of Mr. Gillis himself, covering almost every day for which he billed work, made reference to phone calls made and received.

A number of the accounts, particularly in 2019, explicitly refer to telephone conversations in each of the daily recitals. As for other times, as he would have been entering time into his computer system, there is no way he would have been excluding time spent on phone calls. That proposition is preposterous.

[ 85 ] Mr. Gillis also spent time on an unrelated file involving Mainland Telecom, which is not under taxation, and which contained explicit billing for phone calls. There is no way to know how much of the cell phone bills involved calls on that file. [ 86 ] In sum, Mr.

Gillis has not proved to my satisfaction that he inadvertently failed to bill any time which was spent on phone calls. [ 87 ] While this did not come up in argument, it is noteworthy that much of the time was more than two years before the date of the account, in which case there might be a limitations defence to it. [ 88 ] I find this account to have been issued in bad faith and I disallow it in its entirety. Credibility and result [ 89 ] The only two witnesses on the hearing were Mr. Ferguson and Mr. Gillis himself. Mr. Ferguson’s evidence was relatively brief. [ 90 ] I give little credence to anything that Mr.

Ferguson testified to. He clearly has a serious bias against Annapolis, with whom he is actively in litigation, and a bias in favour of Mr. Gillis, with whom he appears to have a close relationship. It is understandable that he would not concede that he made excessive use of Mr. Gillis’s time, given that this is one of the criticisms he faces in his wrongful dismissal suit. [ 91 ] Mr. Gillis has an obvious bias, as well, in the sense that he has a monetary interest, and his professionalism is being questioned. He is also in litigation with Annapolis as a third party to Mr. Ferguson’s wrongful dismissal action.

However, his credibility suffers most from the fact that he appears to have lost his objectivity over the course of this engagement and was unable to recognize the paramountcy of his duty to Annapolis as a whole, rather than to Mr. Ferguson. [ 92 ] His issuance of the December 2021 bill was so patently in bad faith, as I have stated, that his credibility suffers on this basis as well. [ 93 ] I do not ignore the fact that Mr. Gillis is a very senior lawyer whose word should carry some weight. Were it otherwise, the result would have been more severe.

Taking all of this into account and recognizing that this may not make either party happy, I believe a fair result is to decrease Mr. Gillis’s fees by 20%. This amounts to a reduction of $62,172.00, plus HST. Paralegal time [ 94 ] This may be a minor issue, as compared to everything else, but throughout the bill Mr. Gillis charged time for paralegal services at $75 per hour. The total over the 2½ years of paralegal time charged was 117.6 hours, adding up to$8,820.00 plus HST. The most paralegal time that shows up in any month was 13.7 hours in November 2018.

Most months had several hours of time, and occasionally one sees one hour or less. [ 95 ] At no time during the evidence did Mr. Gillis explain what the paralegal or support work consisted of, nor did he disclose the identity of the person or persons who performed the work. I understand that Mr. Gillis did most of his own typing, and during the relevant time worked almost entirely from his home. To the extent that the work involved was what one would call secretarial, I believe most clients would expect that this is included in the lawyer's own hourly rate.

It is difficult based on the evidence to conclude how much true paralegal work was performed, as most people would understand paralegal work to be. [ 96 ] I appreciate that the Retainer Agreement allowed for $75 per hour for paralegal services, but on a taxation, it still must be justified. No witness was called to testify to the time spent, and Mr. Gillis himself gave no evidence that truly supported the paralegal time charged.

Under the circumstances, I have no confidence that this part of the bill has been proved and I am inclined to reduce it by 50%. [ 97 ] As such, the additional amount of $4,410.00 plus HST will be removed. Conclusion [ 98 ] I am deducting $66,582.00 plus HST, for a total of $76,569.30 from the $406,398.57 total of the first 30 bills. This amount must be repaid by Mr. Gillis to Annapolis. [ 99 ] I accordingly tax the total of the initial 30 accounts at $329,829.27. I tax the December 2021 account at $0.00. Costs [ 100 ] Annapolis asks for its costs of this taxation. I believe a costs order against Mr.

Gillis is justified. First of all, I have found that Annapolis was overcharged. Secondly, the hearing was protracted by Mr. Gillis’s approach of taking us through hundreds upon hundreds (if not thousands) of emails in order to reconstruct his activities. This in turn was made necessary by the fact that there were no satisfactory time records. [ 101 ] I am prepared to entertain written submissions from the parties as to how much the costs order should be. Annapolis shall have two weeks to make its submission. Mr. Gillis shall have two weeks from the receipt of Annapolis’s submissions to reply.

Annapolis shall have a further week thereafter. [ 102 ] Following a decision on costs, a Certificate will issue. ADDENDUM (COSTS) [ 103 ] I have received the parties’ submissions on costs. Mr. Norman has asked for approximately $30,000.00 on behalf of his client.

Mr. Gillis argues that I have no jurisdiction to make any order beyond the nominal amounts that the applicable Regulations provide. [ 104 ] There is little doubt in my mind that substantial costs have been awarded in the past; indeed, I have done so myself on at least one occasion: see H.S. v. Owen, 2016 NSSM 44 .

However, in that case I did not face an argument questioning my authority, and as such did not consider the question of my jurisdiction to award such costs. [ 105 ] There is precious little authority on the subject of a taxing master or adjudicator to award costs of the proceeding itself, so I must resort to first principles. [ 106 ] The jurisdiction of an adjudicator to engage in a taxation derives from more than one source. [ 107 ]

Section 9A of the Small Claims Court Act provides: Taxations 9A

(1) An adjudicator has all the powers that were exercised by taxing masters appointed pursuant to the Taxing Masters Act immediately before the repeal of that Act, and may carry out any taxations of fees, costs, charges or disbursements that a taxing master had jurisdiction to perform pursuant to any enactment or rule.

(2) The monetary limits on the jurisdiction of the Court over claims made pursuant to

Section 9 and on orders made pursuant to

Section 29 do not apply to taxations or to an appeal of an order of the Director of Residential Tenancies pursuant to

Section 17C of the Residential Tenancies Act. [ 108 ] The Taxing Masters Act was silent on the authority of a taxing master to award costs of the taxation itself. [ 109 ] A second source of jurisdiction is the Legal Profession Act : Taxation 67 Notwithstanding any other enactment, a lawyer's account may be taxed by (

a) an adjudicator; or (

b) a judge. 2004, c. 28, s. 67 . Initiation of taxation 68 A taxation may be initiated by (

a) any person claiming the whole or a portion of an account; or\ (

b) any person from whom an account or any portion of it is claimed. 2004, c. 28, s. 68 . Where lawyer is party 69 Where a lawyer is a party in a proceeding in which the reasonableness of the lawyer's account is raised, the presiding judge or adjudicator may (

a) tax the account as part of the proceeding; or (

b) order the account to be taxed by another judge or adjudicator. 2004, c. 28, s. 69 . Appeal A decision on a taxation may be appealed to the Supreme Court of Nova Scotia, if the taxation is conducted by an adjudicator; or the Nova Scotia Court of Appeal, if the taxation is conducted by a judge. 2004, c. 28, s. 70 . Regulations 71

(1) The Governor in Council may, after consultation with the Council in the time and in the manner determined by the Governor in Council, make regulations (

a) prescribing the length of notice required before a taxation; (

b) prescribing the circumstances in which notice may be waived; (

c) prescribing the means of service of a notice; (

d) prescribing the means of proof of service; (

e) prescribing when a taxation may be held in the absence of one or more parties to the taxation; (

f) governing the practice and procedures of taxations;

(

g) respecting payment of the cost of taxations ; (emphasis added) (

h) permitting a person or class of persons to carry out activities referred to in subsection 16(1) for the purpose of clause 16(4)(m); (

i) defining any word or expression used but not defined in this Act; (

j) further defining any word or expression defined in this Act; and (

k) respecting any matter that the Governor in Council considers necessary or advisable to carry out effectively the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

(3) Where regulations made pursuant to subsection (1) conflict with the Small Claims Court Act or any regulations made pursuant to that Act, the regulations made pursuant to subsection (1) prevail. 2004, c. 28, s. 71 . [ 110 ] As highlighted, the question of the “costs of taxations” is specifically referred to in 71(1)(

g) as something that the Government in Council may make regulations concerning. [ 111 ] The provisions under the Legal Profession Act are mostly the same as in the former Barristers and Solicitors Act , RSNS 1989, c 30 , though the power to make regulations specifically respecting the payment of the costs of taxations is subsumed in the more general power under s.49A (1) of the Barristers and Solicitors Act to “ make regulations governing the practice and procedures of taxations .” [ 112 ] It does not appear that the Governor in Council has ever made regulations specifically under the Legal Profession Act or its predecessor, respecting taxations. [ 113 ] So, one must look to the Small Claims Court Taxation of Costs Regulations made under the Small Claims Court Act , for guidance. [ 114 ] Unfortunately for Annapolis and its claim for substantial costs, there is nothing in these Regulations that appears to provide jurisdiction to award costs beyond what is referred to in Form 2 as the $75.00 “taxation fee.” [ 115 ] Small Claims Court adjudicators do not have inherent jurisdiction over costs as might a Supreme Court judge.

My authority must derive from a statute or regulation. [ 116 ] I conclude that I have no basis to award Annapolis anything beyond the nominal $75.00 that is provided. [ 117 ] A certificate of taxation will issue accordingly. DATED at Halifax, Nova Scotia this 28th day of June 2023. Eric K. Slone, Adjudicator