Weir v. National Bank of Canada, 2011 NSSC 430

SUPREME COURT OF NOVA SCOTIA Citation: Weir v. National Bank of Canada , 2011 NSSC 430 Date: 20111207 Docket: Hfx. No. 329610 Registry: Halifax Between: Lowell Weir Applicant -and- National Bank of Canada and the Prothonotary of the Supreme Court of Nova Scotia in Halifax Respondents Costs Decision Judge: The Honourable Justice Robert W. Wright Date of Last Written Submissions: October 21, 2011 Written Decision: December 7, 2011 Counsel: Counsel for the Applicant - W. Dale Dunlop Counsel for the Respondent National Bank of Canada - David Coles, Q.C. Wright, J.

[ 1 ] This is a costs decision following the discontinuance of a judicial review application filed on May 25, 2010 whereby the Applicant requested judicial review of the registration of a judgment made under the Enforcement of Canadian Judgment and Decrees Act by the Prothonotary of the Supreme Court of Nova Scotia. [ 2 ] The procedural background to this application is concisely set out in the brief filed on behalf of the National Bank, which reads as follows [with minor revisions I have added]: The Bank obtained judgment in the amount of $20,000 as against Mr.

Weir in the Quebec Superior Court (Commercial Division) on February 10, 2010. Pursuant to the Enforcement of Canadian Judgment and Decrees Act , S.N.S. 2001, c. 30, s.1 , the aforesaid judgment was made a judgment of the Supreme Court of Nova Scotia [by order of the Prothonotary] on April 15, 2010. Mr. Weir filed an application seeking judicial review [of the Prothonotary’s order] contesting the registration of the Quebec judgment in Nova Scotia on May 25, 2010. The judicial review proceeding initially came before the Honourable Justice Gerald R.P. Moir.

After discussion between counsel and the court it was agreed to adjourn the application without day. Mr. Weir filed an amended notice of judicial review on January 26, 2011. A motion for directions was conducted before your Lordship with respect to the same on February 16, 2011. An order setting filing deadlines etc. was issued on February 28, 2011. On or about March 21, 2011 a conference call was held with your Lordship wherein W. Dale Dunlop, lawyer for Mr. Weir, indicated that he would no longer argue that [the] aforementioned statute should be interpreted to exclude Quebec Judgments.

It was also understood that Mr. Weir would discontinue his proceeding and the Bank could make a written submission on costs on or before June 30, 2011. Mr. Weir discontinued his judicial review proceeding on or about March 30, 2011 and commenced a distinct proceeding contesting the registration of the judgment pursuant to the aforementioned statute. The new proceeding bears Hfx. No. 346219. [ 3 ] In the result, this judicial review application did not proceed beyond the stage of the motion for directions heard on February 16, 2011 as mandated by Civil Procedure Rule 7.06.

Concurrently with the filing of a Notice of Discontinuance on March 30, 2011 counsel for the Applicant commenced a new proceeding by way of a Notice of Application in Court seeking relief under s. 8 of the statute above recited. [ 4 ] Where counsel have since been unable to agree on costs of the discontinued judicial review application, I invited written submissions which both counsel have since filed. [ 5 ] The obligation to pay costs imposed upon a party filing a Notice of Discontinuance is set out in Civil Procedure Rule 9.06 which reads as follows: 9.06

(1) A party who files a notice of discontinuance, consent to judgment, or notice of withdrawal must, unless a judge orders otherwise, pay costs of the opposing party in an amount to be fixed under Rule 77 - Costs.

(2) A judge or adjudicator who assesses costs must consider the stage of the proceedings at which the notice or consent was filed, among the other factors under Rule 77 - Costs. [ 6 ] In my view, there are no principled grounds upon which this presumptive obligation should be displaced in the case at hand. It is therefore a matter of the determination by the court of an appropriate amount of party and party costs to be awarded on this somewhat unusual set of facts. [ 7 ] The entrenched general discretion of the court in making an award of party and party costs is embodied in Civil Procedure Rule 77.02 which reads as follows: 77.02

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 - Settlement. [ 8 ] Complementing that general discretion is the more specific direction for the assessment of costs at the end of a proceeding found in Civil Procedure Rule 77.06. The relevant sections of that Rule read as follows: 77.06

(1) Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act , a copy of which is reproduced at the end of this Rule 77. . . .

(3) Party and party costs of a motion or application in chambers, a proceeding for judicial review , or an appeal to the Supreme Court of Nova Scotia must, unless the presiding judge orders otherwise, be assessed in accordance with Tariff C. [ 9 ] In keeping with the court ’ s overarching general discretion in awarding costs, Rule 77.07 expressly enables a judge to add or subtract an amount from tariff costs after the trial of an action or the hearing of an application.

Rule 77.08, in turn, expressly enables a judge to award lump sum costs instead of tariff costs. [ 10 ] Tariff C, of course, contemplates the assessment of costs after the hearing of an application or motion, correlating as it does incremental ranges of costs relative to the length of the hearing (with the potential for multiplication of the maximum amounts in situations where the application in Chambers is determinative of the entire matter at issue in the proceeding).

Tariff C is therefore of limited guidance in the present case since the application did not proceed beyond the motion for directions heard on February 16, 2011. [ 11 ] Tariff F must be noted as well where it provides a tariff of fees allowable to a party entitled to costs in a proceeding which is

discontinued or settled. Under that tariff, for an “ Amount Involved ” up to $25,000 (as is the case here), the amount of costs to be awarded is stipulated to be not more than $3,000.

Obviously, the latter is a maximum amount (subject to the court ’ s overriding general discretion) and regard must be had under Civil Procedure Rule 9.06 (2) to the stage of the proceeding at which the Notice of Discontinuance was filed. [ 12 ] Bearing in mind that this judicial review application did not extend beyond the motion for directions stage, and therefore did not reach the point where any significant amount of effort was seemingly engaged in preparing for the application (which was not of a particularly complex nature), I conclude that the maximum amount of $3,000 far exceeds the appropriate award of costs to be made.

I interject here that there is no evidence or information before the Court as to the Respondent Bank ’ s actual legal expenses incurred. [ 13 ] Since the Court is therefore left in the position where neither Tariff C nor Tariff F is directly apposite here, I conclude that the Court should exercise its discretion to award lump sum costs instead of tariff costs, pursuant to Rule 77.08. [ 14 ] In determining the appropriate lump sum amount, some guidance can nevertheless be drawn from Tariff C by benchmarking what the range of costs would have been had the judicial review application been actually heard.

In my estimation, it likely could have been fully argued within a half day which correlates with a suggested range of $750 - $1,000 in party and party costs. Even if it spilled over to more than one half day, but took less than one full day, the suggested range of costs escalates only to $1,000 - $2,000. [ 15 ] From another perspective, the hearing which actually did take place was the motion for directions before me on February 16, 2011 and the earlier adjournment thereof before Justice Moir. Both these court appearances took less than one hour.

Even if compared to an interlocutory motion generated by a litigant (as opposed to the motion for directions here which is procedural in nature and mandated by our Civil Procedure Rules) the Tariff C motion costs would be in the range of $250 - $500. That is another benchmark which can be considered. [ 16 ] Guided by these benchmarks from Tariff C, and the sense of relativity they bring, I conclude that the appropriate lump sum of party and party costs to be awarded to the Respondent Bank on the discontinuance of this proceeding is $500.

In addition, as authorized by Rule 77.10(1), I award the Respondent its proven disbursements in the total amount of $251.98, representing expenses incurred in obtaining and transcribing the CD ’ s from the two court appearances aforesaid. [ 17 ] In the result, the total amount of costs and disbursements awarded to the Respondent Bank is the sum of $751.98 which I direct to be paid by the Applicant within 30 days of the release of this decision. J.