King v. RBC Dominion Securities Inc., 2012 NSSC 259

SUPREME COURT OF NOVA SCOTIA Citation: King v. RBC Dominion Securities Inc., 2012 NSSC 259 Date: 20120706 Docket: Syd. No. 246513 Registry: Sydney, NS Between: Henry David King and Joyce Carmel King Applicants v. RBC Dominion Securities Inc./RBC Dominion Valuers Mobiliers Inc. a body corporate, and Frank Youden Respondents __________________________________________________________________ DECISION ON COSTS __________________________________________________________________ Judge: The Honourable Justice Cindy A.

Bourgeois Written Submissions: Received by Roderick Rogers on July 5, 2012 Received by Robert Risk on July 6, 2012 Written Decision: July 9, 2012 Counsel: Robert Risk and Jennifer Anderson, for the Applicants Roderick Rogers, Q.C., on behalf of Nigel Campbell, for the Respondents By the Court :

[ 1 ] The Applicants, Henry David King and Joyce Carmel King brought a motion seeking consolidation under Civil Procedure Rule 37.02 , as well as an alternate remedy of matters being heard together under Rule 37.03. The Applicants are one of four plaintiffs seeking recovery in separate actions against RBC Dominion Securities Inc. and Frank Youden in relation to the alleged mismanagement of investment accounts. [ 2 ] The motion was heard on June 11, 2012 and dismissed for reasons set out in King v. RBC Dominion Securities Inc., 2012 NSSC 225 .

The parties have been unable to agree as to the cost consequences flowing from the motion. Written submissions have been received from both parties, outlining their respective positions on costs. POSITION OF THE PARTIES [ 3 ] As the successful party, the Respondents are seeking costs on the motion, payable forthwith, in the amount of $2000.00, all inclusive. Relying on Tariff C, the Respondents submit that the Court should consider the complexity of the matter before the Court, as well as the fact that it really involved four separate plaintiffs.

It is submitted that $500.00 per plaintiff would equate to an overall cost award of $2000.00. [ 4 ] The Applicants submit that a proper costs award considering Tariff C and the length of the motion, would be $800.00. It is submitted that costs should be payable in the cause, or in the alternative, in any event of the cause at the end of the proceedings. DETERMINATION [ 5 ] Costs are addressed in Civil Procedure Rule 77 . It is well settled that costs are within the discretion of the Court (Rule 77.02). Rule 77.03 provides guidance as to the liability for costs.

Several aspects of that Rule are applicable to the present matter, notably: Liability for costs 77.03

(1) A judge may order that parties bear their own costs, one party pay costs to another, two or more parties jointly pay costs, a party pay costs out of a fund or an estate, or that liability for party and party costs is fixed in any other way. ...

(3) Costs of a proceeding follow the result, unless a judge orders or a Rule provides otherwise.

(4) A judge who awards party and party costs of a motion that does not result in the final determination of the proceeding may order payment in any of the following ways: (

a) in the cause, in which case the party who succeeds in the proceeding receives the costs of the motion at the end of the proceeding; (

b) to a party in the cause, in which case the party receives the costs of the motion at the end of the proceeding if the party succeeds; (

c) to a party in any event of the cause and to be paid immediately or at the end of the proceeding, in which case the party receives the costs of the motion regardless of success in the proceeding and the judge directs when the costs are payable;

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d) any other way the judge sees fit. [ 6 ] Rule 77.05(1) further provides that Tariff C will typically apply to the assessment of costs arising from the motion unless the judge hearing the matter determines otherwise. [ 7 ] Tariff C also contains a number of provisions applicable to the present matter : TARIFF C Tariff of Costs payable following an Application heard in Chambers by the Supreme Court of Nova Scotia For applications heard in Chambers the following guidelines shall apply:

(2) Unless otherwise ordered, the costs assessed following an application shall be in the cause and either added to or subtracted from the costs calculated under Tariff A.

(3) In the exercise of discretion to award costs following an application, a Judge presiding in Chambers, notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application. [ 8 ] In considering the length of the motion in the present matter, I note the proceeding commenced at 10:30 a.m. and concluded before 1 p.m. In my view, the time frame would be considered “ more than 1 hour, but less than ½ day ” . The Tariff suggests a range of costs of $750.00 to $1000.00. [ 9 ] I have considered the submissions, as well as the nature of the motion itself.

I am satisfied that it is proper to apply Tariff C and that an appropriate award of costs in this matter is $800.00. [ 10 ] The remaining issue, and perhaps the one of most contention, is how and when such costs should be paid. The Respondents, as noted above, submit that given their success, costs should be payable by the Applicants, forthwith. I agree, in part . [ 11 ] Notwithstanding the statement contained in Tariff C that seems to suggest costs are to be “ in the cause ” , this is subject to the Court ’ s discretion to order otherwise.

Further, Rule 77.03(4) clearly contemplates the Court awarding, where appropriate, cost consequences other than “ in the cause ” . In my view, the provisions of Tariff C , do not trump the clear options provided to the Court in Rule 77.03 for structuring cost awards. [ 12 ] Although traditionally a view has existed that costs should be in the cause, the Court of Appeal has determined that there is no general proposition that interlocutory matters will attract costs in the cause (see Salvage Association v.

North American Trust Company , 1998 NSCA 210 ). [ 13 ] The Respondents have relied heavily on several recent authorities in support of an immediate award of costs . I have particularly noted the approach of Warner, J., in Merks Poultry Farms Ltd. v. Wittenberg , 2010 NSSC 395 , citing an earlier decision in National Bank Financial Ltd. v.

Potter , 2008 NSSC 213 , where he comments as follows: While at one time it may have been usual to defer costs of interlocutory applications to the end of the case, the length and complexity of modern litigation has led to a reversal of that trend except in those circumstances where the primary issue in the interim application is the same as that intended in the ultimate hearing, or where to award costs at an interim stage may prevent the matter from being determined on its merits at a later date.

Generally, the parties are better able to argue and the Court is better able to make the appropriate costs determination at the time of the application. Unless the costs award may be improved with the benefit of hindsight (after trial), the award should be paid when ordered.

[ 14 ] The same approach has been recently applied by Wright, J. in Amaratunga v. Northwest Atlantic Fisheries Organization, 2011 NSSC 3 . There, the Court rejected the proposition that an immediate award of costs should only be triggered where the Court is expressing disapproval of a party ’ s conduct. Wright, J. states as follows: The Court recognizes that the most common basis in the case law for an award of costs to be payable forthwith is the situation where the court thereby reflects its disapproval of some conduct on the part of the unsuccessful party.

However, in light of the wide discretion that the Court has when it comes to costs, it is my view that that is not the sole situation in which an award of costs payable forthwith can be justified. The Salvage Association case , in my view, does not stand for such a broad proposition. [ 15 ] In the present case, the Applicants brought forward a motion primarily for consolidation which was unsuccessful. Although the Applicant ’ s view the state of the law as being somewhat confused, the Court did not share that view.

It was clear, however, that the motion was made more complex by virtue of the nature of the four claims which the Applicants sought to consolidate, and that inadequate evidence was provided to properly balance whether consolidation or some other remedy was appropriate. [ 16 ] In the present instance, it is appropriate that the Applicants bear the cost of the failed motion, regardless of the outcome of the litigation.

However, costs shall not be payable until the end of the proceedings. [ 17 ] Although the Respondents submitted that a costs award should contemplate all four plaintiffs contributing, it was the Applicants King who chose to bring the motion . Although the other plaintiffs supported the motion and consented to consolidation, they did not advance same. As such, the cost award shall be against the named Applicants only. [ 18 ] In conclusion, the Applicants shall pay to the Respondents costs in the amount of $800.00, payable in any event of the cause, at the end of the proceedings. J.