Young v. Merrill Lynch Canada Inc, 2013 NSSC 396

SUPREME COURT OF NOVA SCOTIA Citation: Young v. Merrill Lynch Canada Inc, 2013 NSSC 396 Date: 20131210 Docket: Syd. No. 238251 Registry: Sydney Between: Brian Young and Nancy Young Plaintiffs -and- Merrill Lynch Canada Inc., a body corporate Defendant Costs Decision Judge: The Honourable Justice Cindy A. Bourgeois Heard: By written submissions Written Decision: December 10, 2013 Counsel: Counsel for the Plaintiffs - Blair Mitchell Counsel for the Defendant - William Ryan, Q.C. Bourgeois, J.

INTRODUCTION [ 1 ] In 2005, the Plaintiffs Brian and Nancy Young (the Plaintiffs) commenced an action against the Defendant Merrill Lynch Canada Inc. (the Defendant), in relation to the management of funds invested by them. Earlier this year, this Court heard two motions, one by the Prothonotary pursuant to Civil Procedure Rule 4.22, and one by the Defendant pursuant to Rule 82.18. [ 2 ] Additionally, the Defendant brought a companion motion seeking to strike numerous paragraphs contained in the affidavit sworn by Brian Young and made in response to the motions for dismissal.

The Defendant was able to satisfy the Court that a number of statements contained in the affidavit were inappropriate and accordingly, should be struck. [ 3 ] Both dismissal motions were ultimately unsuccessful for the reasons reported at 2013 NSSC 225 . The parties have been unable to agree as to the costs which should arise, in relation to the motions. POSITION OF THE PLAINTIFFS [ 4 ] The Plaintiffs seek costs in the net amount of $3500.00. Mr. Mitchell submits the Court should apply Tariff C, and use a multiplier of 2 to double a full day award to $4000.

He concedes a deduction therefrom is warranted given the Defendant ’ s success in having several provisions in the Young affidavit struck. Mr. Mitchell asserts that the Defendant conducted itself unreasonably in bringing the dismissal motion, and its inadequate attempts to find missing materials it asserted gave rise to “ serious ” prejudice should not be condoned by the Court. POSITION OF THE DEFENDANTS [ 5 ] Notwithstanding the fact that the primary motion for dismissal was unsuccessful, the Defendant submits it would be “ fair as between the parties ” to award costs against the Plaintiffs.

It is submitted that an award of $5000.00 is appropriate given the costs involved, including bringing a witness from Toronto for cross-examination, at the Plaintiff ’ s request. DETERMINATION [ 6 ] Of course, the granting of costs is in the discretion of the Court, with an award intended to “ do justice between the parties ” – Rule 77.02(1). [ 7 ] Further, costs normally follow the results, unless a judge orders otherwise – Rule 77.03(3).

Additionally, Rule 77.03(4) addresses the means of structuring an award of costs in relation to motions which do not result in a final determination of the proceeding, including “ in any way the judge sees fit ” . [ 8 ] Both parties submit Tariff C should guide the Court, and that the relevant length of the proceeding should be considered to be one day. I agree. [ 9 ] Mr. Mitchell seeks to apply a multiplier of 2 to Tariff C costs. It should be noted that the multipliers referred to in Tariff C – paragraph 4, apply when the matter in Chambers “ is determinative of the entire matter in issue in the proceeding ” .

Such is not the case here. [ 10 ] Mr. Ryan submits that Tariff C is just a starting point, which the Court has discretion to increase. That clearly is the case, just as the Court has the discretion to decrease the tariff amount, provided the Court feels it is just to exercise that discretion. [ 11 ] I turn now to the decision itself. If not readily apparent from reading same, the Plaintiffs are very, very fortunate that their claim still has life. They narrowly averted a fatal procedural bullet.

The Court, without difficulty, found that the advancement of the Plaintiffs ’ claim was marked by lengthy periods of inaction and silence. The delay was found to be inexcusable. The ultimate outcome of the motion hinged upon whether “ serious prejudice ” to the Defendant ought to be presumed, or needed to be proven. It was the Court ’ s

determination on that issue, which ultimately lead to the dismissal of the motion. [ 12 ] It was only after the Prothonotary filed a motion for dismissal, the second in the proceeding, that the Plaintiffs and their current counsel became active in moving the claim along in the normal path of litigation. In my view, the Defendants should not be criticized for advancing its own motion. The Plaintiffs ’ delay was inordinate and inexcusable.

The Defendant had every right to raise issue with respect to that, and its position that “ serious prejudice ” should be presumed, although not successful, was not unreasonably advanced. [ 13 ] The Defendant ’ s lack of success on the motion was not due to the Court endorsing the conduct of the claim by the Plaintiffs or their legal representatives, nor due to a lack of prejudice given the delay.

The Defendant failed in its motion because the Court was unable to conclude, based upon the evidence before it on the motion, that the Defendant suffered serious prejudice. [ 14 ] Typically the Court will consider awarding costs in some fashion to a successful party, in this instance the Plaintiffs. I decline to do so. In my view, the inordinate and inexcusable delay encountered in advancing this claim was due to the inaction of the Plaintiffs and their counsel. It is this which triggered the motions for dismissal. [ 15 ] Should the Defendant, while unsuccessful on the motion seeking dismissal, be awarded costs?

The Court is mindful that the Defendant was successful in having a number of provisions contained in Mr. Young ’ s affidavit struck. In my view, some costs should flow from that outcome. The Defendant argues that enhanced costs should flow from the need to bring their witness from Toronto to be cross-examined. I disagree. The evidence elicited from the witness on cross-examination was not only relevant, but of assistance to the Court on the issue of whether serious prejudice existed. [ 16 ] This is an unusual set of circumstances.

I am not prepared to award the Defendant full Tariff C costs, but given the considerations above, to do justice between the parties, an award of costs in the amount of $1500.00 is warranted. Costs will payable to the Defendant by the Plaintiffs, in any event of the cause, at the conclusion of the proceeding. J.