Islam v. Nova Scotia (Human Rights Commission), 2012 NSSC 266

SUPREME COURT OF NOVA SCOTIA Citation: Islam v. Nova Scotia (Human Rights Commission), 2012 NSSC 266 Date: 20120717 Docket: Hfx No. 325019 Registry: Halifax Between: Dr. Rafiq Islam Applicant v. Nova Scotia Human Rights Commission and Dalhousie University Respondents COSTS DECISION Judge: The Honourable Justice Glen G. McDougall Heard: August 25, 2011, in Halifax, Nova Scotia Written Submissions On Costs: Applicant – March 29, 2012 Dalhousie University – April 5, 2012 Nova Scotia Human Rights Commission – April 25, 2012 Counsel: Yavar Hameed, for the applicant Rebecca Saturley, for the respondent Dalhousie University Lisa Teryl, for the respondent Human Rights Commission By the Court :

[1] Dr. Rafiq Islam brought a Judicial Review of a decision of the Nova Scotia Human Rights Commission (“Commission”)denying his request for an extension of time to file a complaint against his former employer, Dalhousie University. [2] Dalhousie University successfully brought a motion to be joined as a party. The order authorizing it to do so was granted bythe Honourable Justice Arthur W.D. Pickup. No costs were awarded on the motion. [3] The decision on the Judicial Review was released on the 13th day of February, 2012.

Counsel were given 45 days from thedate of release of my decision to try to reach an agreement on costs failing which they could rely on the Court to decide the issue forthem. Applicant’s Position [4] The applicant seeks costs on a solicitor-client basis. He bases his argument on the fact that the Commission’s breach ofprocedural fairness resulted in significant delay to the fair adjudication of his complaint. (See Radulesco v.

Canadian Human RightsCommission, (SCC), [1984] 2 S.C.R. 407.) [5] Counsel for the applicant provided a Bill of Costs showing legal fees of $3,895.00 along with disbursements of $958.27 andHST of $630.93 for a total of $5,484.20. Disbursements included airfare of $585.27 and taxi charges of $46.90. The applicant’s counselpractises in Ottawa and had to travel to Halifax for the hearing. Compared to the cost of air travel had counsel been based in Sydney, theamount claimed for airfare seems quite reasonable.

Nova Scotia Human Rights Commission’s Position [6] The Commission takes the position that the applicant was only partially successful in his efforts to re-open the complaintproceeding. While he may have succeeded in establishing a breach of procedural fairness he was not successful in showing that theCommission had failed to properly interpret section 29(3) of the Human Rights Act, R.S.N.S. 1989, c. 214. [7] Furthermore, counsel for the Commission points to the applicant’s handling of the file prior to retaining legal counsel as thereason for the delays that occurred.

Given this and the partial success enjoyed by the applicant she suggests that no costs should beawarded but “should the court feel a need to award costs, the Commission requests an offset of costs due to the outcome of thedecision.” By this I assume she meant that the court should consider awarding costs to the Commission and then off-set that amountagainst any amount awarded to Dr. Islam. Dalhousie University’s Position [8] Counsel for Dalhousie University (“Dalhousie”) notes that Dalhousie was not named as a respondent initially.

Due to theapplicant’s refusal to agree to allow Dalhousie to intervene as an interested party, a motion had to be brought to permit Dalhousie tobecome an active participant in the proceedings.

This, along with the applicant’s decision at the eleventh hour to seek an adjournment inorder to retain legal counsel, resulted in the lengthy delays in having this matter heard. [9] Given all of the delays, none of which Dalhousie accepts any responsibility for, counsel suggests that any costs awardedshould not be for Dalhousie’s account. [10] Alternatively, she suggests that should the court award costs then it should be in accordance with Tariff “C” of Rule 77 whichis established under the Costs and Fees Act, R.S.N.S. 1989, c. 104. The range for an application in Chambers that takes more than a half

day but less than one day is $1,000 to $2,000. She further suggests that given the delays that are attributable to the applicant there should be a reduction to $750 and any award for disbursements should exclude the travel costs for out-of-Province counsel. In total she suggests a total award of $935.69 would be adequate. Court ’ s Decision [ 11 ] The applicant, although not 100 percent successful, was nonetheless successful in establishing his right to be heard fully and to be treated fairly.

As such he is entitled to costs, but not on a solicitor-client basis. [ 12 ] Costs should be determined based on Tariff “ C ” . I set legal costs at $1,500 and I further award disbursements for the full amount listed in Mr. Hameed ’ s Bill of Costs with the necessary reduction for HST (13 percent in Ontario). Based on my calculations, the total cost award is $2,459.40 which will be equally shared by the Commission and Dalhousie. [ 13 ] I see no reason to deduct or reduce the amount of travel costs just because the applicant ’ s counsel happens to be from out-of- Province.

The amount claimed is quite modest and as indicated earlier could have been similar or even higher if counsel was from Sydney or some other part of Nova Scotia similarly distant from Halifax. [ 14 ] I also do not accept the argument that Dalhousie should not be responsible for any portion of the amount awarded for costs. Dalhousie took a very active role in the proceedings and it was the university ’ s failure to confine its submissions to any prejudice it might suffer due to delay in hearing the applicant ’ s complaint that later resulted in the Commission ’ s breach of procedural fairness.

Dalhousie was certainly not a passive observer. It sought and was granted standing. As such it subjected itself to the potential for costs and should now be willing to pay its fair share. Final Result [ 15 ] The applicant shall have his costs in the amount of $2,459.40 to be shared equally by the Nova Scotia Human Rights Commission and Dalhousie University. This amount is to be paid in trust to the applicant ’ s counsel within 60 days from the date of release of this decision. McDougall, J.