Keasbey v. Creaser, 2021 NSCA 56

Nova Scotia Court of Appeal Citation: Keasbey v. Creaser , 2021 NSCA 56 Date: 20210716 Docket: CA 502157 Registry: Halifax Between: Julia Newbold Keasbey Appellant v. Larry Owen Creaser and Janet Ellen Creaser Respondents Judge: The Honourable Justice Duncan R. Beveridge Appeal Heard: May 27, 2021, in Halifax, Nova Scotia Subject: Costs

Summary: A Notice of Application correctly specified a date for directions. Court-imposed COVID protocols intervened. There was some delay by appellant’s counsel to obtain a new date for directions. Respondents’ counsel imposed an arbitrary deadline. When appellant’s counsel missed the deadline, a motion to dismiss the proceeding as an abuse of process ensued. Originally, the respondents had suggested directions as an alternate remedy. The only directions requested was a date to hear their anticipated security for costs motion.

The judge dismissed the abuse of process motion, declined to award costs to the appellant, but awarded $500.00 costs to the respondents due to the respondents’ claimed success in getting a date for a security for costs motion. Issues: 1. Should leave to appeal be granted? 2. Did the motions judge commit reversible error in ordering the appellant to pay costs to the respondents? Result: Leave is granted as the appellant has presented an arguable issue with the capacity to impact the outcome.

Further, although deference is owed to a costs award, the motions judge erred in principle in not awarding costs to the appellant for her successful contest of the respondents’ motion to dismiss the proceeding. The motions judge made no adverse findings against the appellant. The sole reason for the costs award against the appellant was the motions judge’s conclusion the respondents had been successful in obtaining their alternate relief—a date for their anticipated security for costs motion. Obtaining a date for the anticipated motion was irrelevant, and hence constitutes an error in principle.

There was no lis between the parties about a date for a security costs motion. The appellant never opposed any such request, and the respondents could have obtained a date from the prothonotary at any time. The costs award is quashed, and costs awarded to the appellant in the amount of $500.00 for the Supreme Court proceedings and $1,000.00 for the appeal, both payable forthwith. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 10 pages. Nova Scotia Court of Appeal Citation: Keasbey v.

Creaser , 2021 NSCA 56 Date: 20210716 Docket: CA 502157 Registry: Halifax

Between: Julia Newbold Keasbey Appellant v. Larry Owen Creaser and Janet Ellen Creaser Respondents Judges: Beveridge, Van den Eynden and Beaton, JJ.A. Appeal Heard: May 27, 2021, in Halifax, Nova Scotia Held: Leave granted and appeal allowed, per reasons for judgment of Beveridge, J.A.; Van den Eynden and Beaton, JJ.A. concurring; Counsel: Philip Romney, for the appellant Rubin Dexter, for the respondent Reasons for judgment: [ 1 ] Usually we hear cases with significant stakes or which invite us to adjudicate unresolved legal principles.

Although this case does not bear either of those hallmarks, the appeal has merit. [ 2 ] The basic facts are uncomplicated. Ms. Keasbey, by Notice of Application, claimed damages against Mr. and Mrs. Creaser for trespass. Delay by Keasbey’s counsel to

schedule a motion for dates and directions caused Creasers’ counsel to apply to have the litigation dismissed as an abuse of process. [ 3 ] The motions judge dismissed the Creasers’ motion. Not only did the judge not award costs to Ms. Keasbey, who had successfully defended the motion, she awarded $500.00 costs, payable forthwith, to the Creasers. [ 4 ] Despite the relatively small amount involved, Ms. Keasbey seeks leave to appeal and, if leave is granted, appeals from this award. [ 5 ] It is tempting to simply deny leave to appeal.

Based on the record of the dispute in the court below, the proceedings seem to be based mostly on personal friction between counsel.

The “hearing” before us proceeded simply in writing (as requested by the parties), so we did not have the opportunity to receive counsels’ input beyond what appears solely in the record. [ 6 ] Nevertheless, unhappy litigants have the right to seek leave to appeal, and if they present an arguable legal issue that could result in the judgment below being overturned, leave should be granted. [ 7 ] I am compelled by the rule of law to conclude that I would not only grant leave to appeal, but also allow the appeal. [ 8 ] As mentioned, the background was a claim in trespass advanced by way of a Notice of Application in Court.

It alleged damages caused by the Creasers’ cutting a large number of trees on Ms. Keasbey’s land without permission. As required, the Notice specified a date and time for a judge to give directions no more than thirty-five days after the filing date of the Notice of Application. The Notice specified April 9, 2020 as the appearance date for directions.

Court-implemented pandemic protocols intervened. [ 9 ] The exact date is unknown, but it was not contested that appellant’s counsel did not receive the filed Notice of Application in Court back from the prothonotary’s office until “late” in the summer of 2020. [ 10 ] In the autumn months, emails were exchanged between counsel. On September 9, 2020, counsel asked if respondents’ counsel would accept service of the Notice of Application and if October 22, 2020 would be a convenient date for the motion for directions.

With no response by September 11, appellant’s counsel said he would arrange personal service. [ 11 ] On September 14, 2020, respondents’ counsel advised he would accept service. Service occurred. Subsequently, respondents’ counsel did not receive confirmation of October 22, 2020 as the date for the motion for directions. [ 12 ] The respondents filed their Notice of Contest on September 21, 2020.

They admitted they had cut trees on the property, but disputed the appellant owned the property. [ 13 ] On October 20, 2020, appellant’s counsel wrote to respondents’ counsel with information that quantified one aspect of the appellant’s damage claim—a landscape architect’s preliminary report which calculated it would cost $190,000 to restore the property. An appraisal report would be available for the motion for directions, “probably” for November 19, 2020 if respondents’ counsel were available.

[14] There was no motion for directions filed for November 19, 2020. Appellant’s counsel claimed other matters took priority. Instead, he offered the explanation that he had sent a request to the prothonotary seeking the dates of December 3 or 17, 2020. [15] In the meantime, respondents’ counsel wrote to appellant’s counsel on November 9, 2020 that if he had not received thenecessary motion materials for directions, returnable for November 19, 2020, at the close of business on November 10, 2020, “thenecessary motion will be brought”.

The letter gave no further details. [16] Appellant’s counsel was in Halifax for a medical procedure on November 10, 2020. His staff advised respondents’ counsel thecorrespondence would be brought to his attention on Thursday, November 12 (November 11 being Remembrance Day). [17] On November 12, 2020, respondents’ counsel filed and served appellant’s counsel with a motion to have the chambers judgedismiss the Notice of Application in Court as an abuse of process, pursuant to Nova Scotia Civil Procedure Rule 88.

As an alternative,the respondents moved for directions “in accordance with Civil Procedure Rule 5.07(5)(b)”. [18] The Honourable Justice Diane Rowe heard the November 19, 2020 motion. She dismissed the abuse of process motion, butagreed to set a date for the respondents to bring a security for costs motion. [19] The parties made brief submissions on the costs consequences for the November 19, 2020 proceedings. I will set out some ofthe exchanges between counsel and the judge later. For now, it is sufficient to note the appellant sought costs because the respondentshad not been successful.

However, the motions judge decided the respondents had been successful in their alternative request toschedule a security for costs motion. ISSUES [20] I would re-state the issues as follows: 1. Should leave to appeal be granted? 2. Did the motions judge commit reversible error in ordering the appellant to pay costs to the respondents? [21] I will first comment on the standard of review. STANDARD OF REVIEW [22] Because the motions judge’s decision and consequent order were interlocutory, the appellant must obtain leave to appeal. Thequestion whether to grant leave to appeal is one of first instance.

Ergo, there is no standard of review as such. Instead, the Court must besatisfied an appellant’s grounds at least raise an “arguable issue”—that is an issue that could result in the appeal being allowed (see:Coughlan et al. v. Westminer Canada Ltd. et al. (1993), (NS CA), 125 N.S.R. (2d) 171 (C.A.); Hartling v. NovaScotia (Attorney General), 2009 NSCA 130; Homburg v. Stichting Autoriteit Financiële Markten, 2016 NSCA 38 at para. 18). [23] A judge’s costs award is discretionary.

Appellate courts can only intervene where a judge erred in principle, or the award isplainly wrong (sometimes referred to as amounting to an injustice); see: McPhee v. C.U.P.E., 2008 NSCA 104 at para. 70; CherubiniMetal Works Ltd. v. Nova Scotia (Attorney General), 2011 NSCA 43 at para. 22; Westminer Canada Ltd. v. Fraser, 2005 NSCA 27 atpara. 19; Armoyan v. Armco Capital Inc., 2011 NSCA 22 at para. 12. [24] This standard of review accords with the Supreme Court of Canada’s guidance on appellate review of costs awards. Forexample, in Hamilton v.

Open Window Bakery Ltd., 2004 SCC 9 (“Hamilton”), Justice Arbour affirmed for the unanimous Court that “[a]court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”(at para. 27). Additionally, in British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 (“Okanagan”), JusticeLeBel for the majority explained that “[t]he power to order costs is discretionary, but it is a discretion that must be exercised judicially,and accordingly the ordinary rules of costs should be followed unless the circumstances justify a different approach” (at para. 22). Justice LeBel elaborated: [42] The discretion of a trial court to decide whether or not to award costs has been described as unfettered and untrammelled, subjectonly to any applicable rules of court and to the need to act judicially on the facts of the case (Earl v.

Wilhelm (2000), 199 Sask. R. 21,2000 SKCA 68, at para. 7, citing Benson v. Benson (1994), (SK CA), 120 Sask. R. 17 (C.A.)). Sigurdson J.’s decisionin the present case was based on his judicial experience, his view of what justice required, and his assessment of the evidence; it is not tobe interfered with lightly. [43] As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulatedfrom review (para. 118).

An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to theapplicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v. Pelech, (SCC),[1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as afailure to apply them or a misapplication of them raise questions of law which are subject to appellate review. [25] I will return to these principles later.

ANALYSIS Leave to appeal [26] The appellant has advanced an arguable issue with the capacity to impact the outcome. Accordingly, I would grant leave toappeal.

Did the motions judge commit reversible error [27] As foreshadowed above, a reversible error is one linked to palpable and overriding factual error, error in the identification orapplication of the appropriate legal principles, or an award that is plainly wrong. [28] Here, with respect, the motions judge erred in principle. It is well accepted that ordinarily costs follow the event. This meansa successful litigant should not be denied their costs absent sound reasons.

Cromwell J.A., as he then was, explained in McPhee v.C.U.P.E., supra: [71] The general rule is that costs should follow the event: see Rule 63.03(1). While of course a judge has discretion to depart from thisgeneral rule, it is an error in principle not to award a successful party costs unless there are sound reasons for doing so: see, for example,Bent v. Nova Scotia Farm Loan Board, Horsnell and Horsnell (1978), (NS CA), 30 N.S.R. (2d) 552 (S.C.A.D.); Kellyet al. v. Wawanesa Mutual Insurance Co. et al. (1979), (NS CA), 30 N.S.R. (2d) 294 (S.C.A.D.); Griffin v.

Corcoran,2001 NSCA 73, (2001), 193 N.S.R. (2d) 279 (C.A.) at para. 83. [29] This is still the law under the “new” Civil Procedure Rules (Rule 77). Hamilton J.A., in Armoyan v. Armco Capital Inc., supra,reaffirmed the need for exceptional circumstances to deny a successful party their costs: [24] Judges have a broad discretion when it comes to ordering costs but their discretion must be exercised judicially, in a principledmanner.

Inherent in the judicial exercise of their discretion is recognition of the principle that a successful party is generally entitled tohis or her costs except for very good reasons and that costs will only be ordered against a successful party in exceptional circumstances,including misconduct; Mark M. Orkin, The Law of Costs, 2nd ed. looseleaf (Aurora, Ont.: Canada Law Book, 1987) at pp. 2-63, 2-89. [25] Examples of misconduct that have led courts to make awards against successful parties are rare and include where a party swore afalse affidavit, MacKay v. Bucher, 2001 NSCA 171, Stanadyne Inc. v.

Supreme Metal Products Inc., [1985] O.J. No. 611 (H.C.J.); wherethere was serious non-disclosure and several misstatements by one party in the course of litigation, prior to trial, Singh v. Singh, [1992]O.J. No. 3123 (Gen. Div.); where it was found there was “collusive and discreditable intrigue” on the part of agents of the successfulcompany, Wismer v. Javelin International Ltd. (1982), (ON SC), 38 O.R. (2d) 26 (H.C.J.); where one party acted in ahigh-handed manner although not in actual breach of a contract, Williams v. 572270 Ontario Inc., [1995] O.J. No. 298 (Gen.

Div.); andwhere the successful party failed to bring the relevant

section of a statute to the attention of the court, Joanisse v. Union of Canada LifeInsurance (1987), 27 C.C.L.I. 164. [30] It cannot be gainsaid that the appellant was not successful. The respondents have never said otherwise, nor could they crediblydo so—after all, the motions judge dismissed the abuse of process motion. However, this is not like the situation in McPhee v. C.U.P.E.,supra, where the trial judge refused without reasons to award the successful parties their costs.

Here, the motions judge not only deniedthe successful party her costs, but ordered costs against her. [31] The motions judge’s reasons are sparse. The entirety are as follows: THE COURT: Okay. Well, I am going to exercise my discretion in this regard and I am going to award costs in the amount of $500 inthis matter. Mr…. MR. DEXTER: Payable forthwith, My Lady? THE COURT: To be payable forthwith. [32] However, her rationale is apparent from the brief exchanges between counsel and the judge at the end of the November 19,2020 proceedings.

I would first observe, the motions judge made no adverse findings against the appellant, nor found that therespondents were in any way prejudiced by the appellant’s delay in securing a new date for directions. [33] The motions judge’s reason for the award of costs against the appellant stems from the notion the respondents were“successful” by virtue of what was termed the alternate remedy they had achieved—a date for the security for costs motion. Thefollowing exchanges illustrate: MR ROMNEY: (Inaudible words) … THE COURT: Mr. Romney you’re breaking up. So, could you please repeat? MR. ROMNEY: Mr.

Dexter, is he asking for $1500 in costs? THE COURT: Yes. MR. ROMNEY: But his application for dismissal of the action was dismissed. I don’t think he should [be] entitled to any costs. THE COURT: Okay, then. Alright then. So, Mr. Romney you’ve made a good point. However, let’s see. Dismissal… MR. ROMNEY: And further, My Lady, there was no application to have a, for security for costs filed in the notice of motion. THE COURT: I’d agree with you there Mr. Romney. Yes. And Mr., Mr. Dexter I appreciate your submissions as it relates to costs. I,let’s see.

You have participated in the matter in any event, and you were not successful. That is quite true. However, you were successfulin the alternative. Mr. Romney? MR. ROMNEY: Pardon me, My Lady? THE COURT: Mr. Romney, Mr. Dexter was ...

MR. ROMNEY : Yes. THE COURT : ... successful in the alternative. MR. ROMNEY : I’m not aware that he was, .. . THE COURT : Mr. Romney I’ve granted, .. . MR. ROMNEY : ... My Lady. THE COURT : …I’ve granted the motion to set down the motion for security for costs which was the alternative that was proposed by Mr. Dexter. [ 34 ] With respect, the setting of a date for the respondents to bring a motion for security for costs was irrelevant to the issue of costs. It cannot be viewed as “success” by the respondents in the alternative.

Reliance on an irrelevant factor is an error in principle. [ 35 ] I say it was irrelevant to the costs issue for two reasons. First, the respondents’ motion was for dismissal of the Application based on abuse of process; in the alternative, they sought directions in accordance with Rule 5.07(5)(b). [ 36 ] The reference to Rule 5.07(5)(

b) seems inopportune. That Rule addresses one of the many requirements an applicant must attend to when they file a Notice of Application. Rule 5.07(5)(

b) details the applicant’s responsibility to provide information about evidence from a witness they have not named: 5.07

(5) A notice of application in court must be entitled “Notice of Application in Court” and otherwise include everything required in a notice of application in chambers, with each of the following modifications: … (

b) if the applicant intends to provide evidence from a witness the applicant cannot name, the notice must provide information about the intended witness, an explanation for the inability to name the witness, and the justification for proceeding by application, rather than action, without naming the witness at the time of the motion for directions; [ 37 ] Even if the alternative relief were truly for directions, as contemplated by the broad case management and remedial powers set out in Rule 5.13, no directions were in fact sought. [ 38 ] Secondly, and more importantly, scheduling a date to hear the respondents’ intended motion for security for costs cannot constitute “success”.

The only lis between the parties was the alleged abuse of process claim. Respondents’ counsel filed an affidavit, brief, and book of authorities; the appellant, a brief. The only dispute addressed in these materials was whether the failure by the appellant to obtain a new motion date for directions amounted to an abuse of process. [ 39 ] The respondents never brought a motion to obtain a date for security for costs. There was no need. They could as of right file their motion documents with a date obtained from the prothonotary.

This was a non-issue. [ 40 ] I acknowledge the respondents’ brief requested the motions judge, as an alternative, to

schedule the security for costs motion. However, the appellant never resisted scheduling a date for such a motion. In fact, appellant’s counsel readily agreed the Creasers would have a prima facie case for security for costs, given Ms. Keasbey’s U.S. residency—and as the appellant pointed out to the motions judge, the respondents could have brought such a motion at any time. Furthermore, when the motions judge did set the date, where did she get it from​​—the prothonotary. CONCLUSION [ 41 ] Creasers’ counsel created an arbitrary deadline.

When the appellant’s counsel failed to meet it, an abuse of process motion to dismiss the entire claim ensued. The appellant successfully defeated that motion. Absent sound reasons, costs should have followed the event. There were none. The sole discernible reason costs did not follow the event is the legally flawed conclusion the respondents were successful in the alternative. [ 42 ] I would grant leave, allow the appeal, and if the costs were paid to the respondents, they must be repaid. I would award costs to the appellant in the amount of $500.00 for the proceedings in the Supreme Court.

The respondents suggested costs of $1,000.00 on the appeal, and I would order that amount in favour of the appellant. Both awards are to be paid forthwith. Beveridge, J.A. Concurred in: Van den Eynden, J.A. Beaton, J.A.