Bonitto v. Halifax Regional School Board, 2014 NSSC 406

SUPREME COURT OF Nova Scotia Citation: Bonitto v. Halifax Regional School Board, 2014 NSSC 406 Date: 2014-11-14 Docket: Halifax, No. 346361 Registry: Halifax Between: Sean Bonitto Plaintiff v. Halifax Regional School Board Defendant Judge: The Honourable Justice Pierre L. Muise Heard: Partially orally at the end of the trial and partially by correspondence Final Written Submissions: October 13, 2014 Counsel: Sean Alexander Bonitto, Plaintiff, self-represented Sheree L. Conlon and Tipper McEwan, Solicitors for the Defendant __________________________________________________________________ LIBRARY HEADING __________________________________________________________________

Summary: This is the costs decision following dismissal of Mr. Bonitto’s action claiming damages and declaratory relief for infringement of his rights to freedom of religion and religious expression by preventing him from handing out Bible tracts on school grounds. Result: Party and party costs awarded based on: an “amount involved” determined using the “rule of thumb” approach at $20,000 per trial day; Scale 2 of Tariff A; and, adding $2,000 per trial day. The Court declined exercising its discretion to increase costs as a result of Mr. Bonitto failing to accept the School Board’s formal offer to settle.

It also found that Mr. Bonitto did not satisfy the public interest litigant criteria so as to relieve him of the obligation to pay costs to the successful party. SUPREME COURT OF Nova Scotia

Citation: Bonitto v. Halifax Regional School Board, 2014 NSSC 406 Date: 2014-11-14 Docket: Halifax , No. 346361 Registry: Halifax Between: Sean Bonitto Plaintiff v. Halifax Regional School Board Defendant Judge: The Honourable Justice Pierre L. Muise Heard: Partially orally at the end of the trial and partially by correspondence Final Written Submissions: October 13, 2014 Counsel: Sean Alexander Bonitto, Plaintiff, self-represented Sheree L.

Conlon and Tipper McEwan, Solicitors for the Defendant COSTS DECISION [ 1 ] I rendered a written decision dismissing Sean Bonitto’s action against the Halifax Regional School Board: Bonitto v. Halifax Regional School Board , 2014 NSSC 311 .

This is my decision on costs in relation to that matter. [ 2 ] The School Board seeks party and party costs, based on an “amount involved” of $60,000, using Scale 2 of the Tariff A, and adding an additional $6,000 to account for the trial having taken three days, plus a 50% cost premium to account for the formal offer to settle made after the trial dates were set but before the original finish date. That amounts to a total cost award of $19,875. It also seeks the costs in the amount of $250 awarded by Justice Coughlan on Mr.

Bonitto’s unsuccessful pre-trial motion to convert the action to an application, which amount was ordered payable to the School Board in any event of the cause. It further seeks its reasonable disbursements. [ 3 ] Mr. Bonitto submits that the issue of costs should be stayed until his appeal to the Nova Scotia Court of Appeal has been determined.

In the alternative, he requests an order that the parties bear their own costs because of the nature of the case, which was one dealing with freedom of religion under the Canadian Charter of Rights and Freedoms . [ 4 ] Civil Procedure Rule 77.06(1) provides that: 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 , … . [ 5 ] The Tariffs are attached at the end of Rule 77.

The tariff applicable to trials is Tariff A. [ 6 ] The Tariffs provide guidelines for determining the “amount involved” to be used in determining the appropriate costs quantum under the applicable tariff, in this case, Tariff A. In that regard, the Tariffs provide as follows: (

b) where the main issue is a monetary claim which is dismissed, an amount determined having regard to (

i) the amount of damages provisionally assessed by the court, if any, (ii) the amount claimed, if any, (iii) the complexity of the proceeding, and (iv) the importance of the issues;

(

c) where there is a substantial non-monetary issue involved and whether or not the proceeding is contested, an amount determinedhaving regard to (

i) the complexity of the proceeding, and (ii) the importance of the issues … . [7] In the case at hand, damages were not provisionally assessed. Damages in the amount of $85,000 were claimed.

However, inrecognition of the fact that its real jeopardy in relation to monetary damages was significantly less, the School Board has taken theposition that the main issues in the case at hand were non-monetary, and is not seeking that the $85,000 claimed be used as the “amountinvolved”. [8] That, in my view, is a reasonable and fair approach. [9] Therefore, I am to determine the “amount involved” based upon the complexity of the proceeding and the importance of theissues to the parties. [10] The question of whether Mr.

Bonitto had a constitutionally protected right to hand out Bible tracts on school grounds was ofsignificant importance to him. It was also of significant importance to the School Board because it impacted upon its ability to controlactivity on its school grounds and, in particular, to ensure the school environment remained religiously neutral and welcoming for allstudents. [11] The action brought into play a novel set of facts in relation to which the following issues had to be determined: (

a) whether the school grounds were a location at which Mr. Bonitto’s Charter

section 2(

a) and/or (

b) rights to distributegospel tracts were constitutionally protected; (

b) even if there was an interference with Mr. Bonitto’s rights to freedom of religion, whether there were conflicting rights ofother individuals which made it such that his religious rights ought not be protected; and, (

c) whether the justification analysis was pursuant to the administrative law test or the Oakes test, followed by a determination ofthe justification issue. [12] Consequently, there was some legal complexity involved in the action. [13] In addition, Mr. Bonitto, before and during trial, changed his position in relation to whether he was challenging only the schoolprincipal’s decision or both the decision and the policy under which it was made. This caused the School Board to produce additionalevidence and authorities to address these oscillating positions. [14] The evidence was relatively straightforward.

However, Mr. Bonitto’s uncertainty in relation to the evidence he needed toestablish his claim resulted in he and his wife being called to the stand a second time to provide supplementary evidence on direct, crossand redirect-examination. That further caused the School Board to have to re-adjust its cross-examinations and its own case mid-trial. [15] This lack of focus created additional complexity and waste of legal resources. [16] This Court has approved of a “rule of thumb” approach to determining the “amount involved” in cases involving a substantialnon-monetary issue.

That approach involves multiplying the number of trial days by a preset amount for each trial day. In Urquhart v.Urquhart (1998), (NS SC), 169 N.S.R. (2d) 134 (N.S.S.C.), $15,000 per trial day was used. Subsequent decisionshave raised the amount to $20,000 per day. That per diem amount was adopted and applied to the “rule of thumb” approach in Mader. v.Hatfield, 2010 NSSC 261 , 2010 NSSC. 261. The substantive claims portion of that decision was overturned on appeal: Maderv. Hatfield, 2012 NSCA 66. However, the Court of Appeal did not disturb the costs quantum.

It merely ordered that it be paid to thesuccessful appellant, instead of the respondent, in addition to the costs of the appeal. Therefore, our Court of Appeal has at leastimplicitly endorsed this “rule of thumb” approach. [17] In my view, in the circumstances of the case at hand, this “rule of thumb” approach, using a per diem rate of $20,000, is onethat will do justice between the parties. [18] I am also satisfied that the basic scale, Scale 2, in Tariff A, is the appropriate scale in the circumstances. I fix the length of trialas being three days.

Using an amount involved of $60,000 (i.e. $20,000 multiplied by three trial days), produces a basic costs amount of$7,250. There were no factors warranting departure from it. In addition, pursuant to Tariff A, I must include an additional $2,000 foreach trial day.

That adds up to $13,250 in costs. [19] Civil Procedure Rule 77.07(1) provides that: A judge who fixes costs may add an amount to, or subtract an amount from, tariff costs. [20] Subsection (2) of Rule 77.07 includes, as an example of a factor which may result in an increase or decrease of tariff costs, “awritten offer of settlement … that is not accepted”. In the case at hand, by correspondence dated October 22, 2012, the School Boardmade a formal offer to settle to Mr. Bonitto by agreeing to a dismissal without costs to any party. The School Board also, in the samecorrespondence, advised Mr.

Bonitto that, if it was successful at trial, it would “be bringing this offer before the Court and seeking anincreased cost premium against [him]”. By that time, the trial date had already been set. However, it was before the original finish date

of February 15, 2013. [ 21 ] Civil Procedure Rule 10.09 provides:

(1) A party obtains a “favourable judgment” when each of the following have occurred: (

a) the party delivers a formal offer to settle an action, or a counterclaim, crossclaim, or third party claim, at least one week before a trial; (

b) the offer is not withdrawn or accepted; (

c) a judgment is given providing the other party with a result no better than that party would have received by accepting the offer.

(2) A judge may award costs to a party who starts or who successfully defends a proceeding and obtains a favourable judgment, in an amount based on the tariffs increased by one of the following percentages: (

a) one hundred percent if the offer is made less than twenty-five days after pleadings close; (

b) seventy-five percent if the offer is made more than twenty-five days after pleadings close and before settling down; (

c) fifty percent if the offer is made after setting down and before the finish date; (

d) twenty-five percent, if the offer is made after the finish date. [ 22 ] Mr. Bonitto did not accept the offer. There is no evidence or suggestion that it was withdrawn. His action was dismissed and the Court decided in favour of the School Board on each issue. Therefore, the result he obtained was no better than he would have received by accepting the offer. As such, the School Board obtained a “favourable judgment”. Given the timing of the offer to settle, I may increase the tariff costs by 50%, in accordance with section (2)(

c) of Rule 10.09. [ 23 ] However, the wording of the offer to settle creates an ambiguity which left it open to Mr. Bonitto to interpret it in two different ways. The terms for settlement specify that it is an offer to settle all of Mr. Bonitto’s claims against the School Board. However, the title to the offer is: “OFFER TO SETTLE BY PARTY CALIMED AGAINST (MONETARY)”. Mr. Bonitto’s Statement of Claim did claim judgment for monetary damages in the amount of $85,000.

However , it also claimed a written apology, a formal letter to be sent home with all students acknowledging that the School Board had violated his rights and freedoms, and that the Charter would be upheld in its schools. Civil Procedure Rule 10.05(3)(

d) specifies the heading to be used in relation to non-monetary claims as being: “Offer To Settle By Person Claimed Against (Non-monetary)”. The fact that the heading referred only to monetary claims, and not non-monetary claims, left it open to Mr. Bonitto to interpret the offer as settling only the monetary claims despite the terms being specified as being to settle all of his claims. [ 24 ] Mr. Bonitto referred to his $85,000 claim as being one for liquidated damages.

However, he also noted that his claim for damages was based upon the School Board openly and vehemently violating the Charter after having been consistently reminded that its actions were in contravention of the Charter, and upon the emotional stress, humiliation and intimidation arising from threats made to himself and his family, as well as public harassment and embarrassment. As such, one reasonably could have viewed the total monetary remedy sought as being made up of multiple monetary claims.

That would increase the reasonableness of interpreting the offer to settle “all claims” as referring to all monetary claims. [ 25 ] It is understandable that the School Board would use a heading which referred to only one type of claim because Rule 10.05(3) provides that the offer to settle must “be entitled in one of the” listed ways. [Emphasis by underlining added.] There is no listed title for a combined monetary and non-monetary claim.

Nevertheless, in the circumstances, it created an ambiguity. [ 26 ] Uncertainty surrounding whether the non-monetary claims were included in the offer to settle would result in uncertainty in relation to whether or not subsection (4) of Civil Procedure Rule 10.05, which requires that the offer be one that settles all claims in the proceeding, had been satisfied. [ 27 ] Saunders J., as he then was, in Stoddard v. Atwil Enterprises Limited (1991), 109 N.S.R. (2d) 254 (N.S.S.C. , T.D.) found that an ambiguous offer to settle did not satisfy the requirements of then Rule 41(A).

The ambiguity in the case at hand is not as severe as that in Stoddard . In the case at hand, if the offer had been accepted, it could have been enforced. However, the ambiguity which does exist is a factor to consider in determining whether to exercise the discretion to increase tariff amounts because of the offer to settle. [ 28 ] Another factor to consider in the exercise of that discretion is the fact that the offer specifically states that it “is contingent upon [Mr. Bonitto] executing a Release in favour of the Halifax Regional School Board”, bearing in mind that Mr.

Bonitto was self- represented throughout. The Court in Nazir v. Western Union Financial Services (Canada) Inc. , 2007 CarswellOnt 9351 (S.C.J.), at paragraphs 13 and 14 , concluded that the fact that the offer to settle required the self-represented plaintiff to sign a Release took it “outside the purview of” the Rule dealing with offers to settle. [ 29 ] Courts have declined exercising their discretion to increase costs based on a rejected offer to settle where non-monetary issues were involved, particularly in the family law context. In P. (J.M.) v.

P. (P.J). , 2001 CarswellAlta 56 (Q.B.) , the Court refused to apply the Rule relating to doubling costs for failing to accept an offer to settle in a case where the only issues were parenting and mobility. The case at hand is not in the family context. However, the importance of the non-monetary issue to the parties has already been considered in determining the “amount involved”. That, in my view, is a further factor which militates in favour of declining to exercise my discretion to increase costs pursuant to Rule 10.09.

[ 30 ] In the case at hand, I did ultimately find that Mr. Bonitto’s rights to freedom of religion and religious expression, in the circumstances, did not warrant protection because of the impact of his activity on the rights of others. However, contrary to the position taken by the School Board, I did find that there was an interference with his rights to freedom of religion and religious expression which was more than trivial or insubstantial. Therefore, Mr. Bonitto’s action was not frivolous or vexatious.

There was a real issue regarding infringement to determine, and the location analysis had not been previously conducted in the factual context of the case at hand. [ 31 ] Given that there was some legal complexity involved in this matter, it was not unreasonable for Mr. Bonitto to reject the proposed dismissal without costs and pursue his claims against the School Board. Hood J., for this Court, in Sysco Canada Inc. v.

Joe’s Warehouse Ltd. , 2011 NSSC 378 , declined exercising her discretion to increase costs by 100% where the offer to settle for “$1.00 all- inclusive” was made less than twenty-five days after pleadings closed, because she was of the view that it was not unreasonable for the plaintiff to refuse to forego its claim prior to discoveries. Rather she applied a 75% premium because it may have been reasonable for the plaintiff to accept the offer after discoveries. In the case at hand, there was no point at which it became more reasonable for Mr. Bonitto to accept the offer.

Even though I ultimately dismissed his action, as noted in Sysco Canada , the benefit of that hindsight cannot be used to assess the reasonableness of his rejection of the School Board’s offer. [ 32 ] On the other hand, I must remember that the purpose of offers to settle is to discourage the pursuit of unmeritorious claims. Mr. Bonitto’s claims were dismissed. [ 33 ] Mr. Bonitto argues that the nature of this case, which involves a determination in relation to rights to freedom of religion, warrants an order that the parties bear their own costs.

This argument, at least implicitly, brings into play the question of costs in public interest litigation. [ 34 ] The Supreme Court of Canada, in Odhavji Estate v. Woodhouse , 2003 SCC 69 , found that the plaintiff failed to satisfy the public interest litigant criteria of either having “no direct pecuniary or other material interest in the proceedings” or having “a pecuniary interest, but whose interest is modest in comparison to the cost of the proceedings”, because he was seeking several million dollars in damages.

That matter involved actions, arising out of a fatal police shooting, brought against the police officers, police chief, Police Services Board and Province. There were multiple interveners. Therefore the proceedings were significantly more involved than those in the case at hand, where there is only one defendant and the trial took only three days.

The Court in Odhavji Estate found that the Court of Appeal had not erred in following the usual rule that the successful party is entitled to costs, instead of relieving the unsuccessful party of a cost obligation due to being a public interest litigant. [ 35 ] Similarly, in the case at hand, Mr. Bonitto continued throughout to pursue damages in the amount of $85,000. That was clearly excessive, even assuming he had been successful in establishing the breaches alleged.

However, in my view, in the circumstances of this case, that monetary claim removes him from the category of public interest litigant and makes it inappropriate to relieve him of the obligation to pay costs to the successful party. Nevertheless, the proceeding did satisfy other public interest litigant factors as outlined at paragraph 7 of Brunton v. Fort Eerie (Town) , 2011 ONSC 235 , in that it involved: (

a) issues with importance extending “beyond the immediate interest of the parties involved”; (

b) issues which “have not been previously determined by a court in a proceeding against the same defendant”; (

c) a litigant who “has not engaged in vexatious, frivolous or abusive conduct”; and, (

d) a litigant who is “a partisan in a matter of public importance”. [ 36 ] The fact that Mr. Bonitto’s case satisfies these other criteria, in my view, although insufficient to relieve him of liability for costs, is a further factor militating against increasing costs for his failure to accept the offer to settle. [ 37 ] I have a general discretion to award such costs as I am “satisfied will do justice between the parties”: Rule 77.02(1).

Considering the factors I have discussed, I am of the view that it would best do justice between the parties to refuse to exercise my discretion, pursuant to Rules 10.09(2) and 77.07(1) and (2), to increase the costs award because of Mr. Bonitto’s failure to accept the offer made. [ 38 ] The order of Justice C. Richard Coughlan, issued November 9, 2011, dismissed Mr. Bonitto’s motion to convert his action into an application and ordered that he pay costs to the School Board “in the amount of $250 in any event of the cause”.

Therefore, the School Board shall have its costs of that motion in that amount. [ 39 ] I have reviewed the School Board’s request and supporting documentation for reimbursement of disbursements. In my view, they are reasonable and properly recoverable. However, it made an error in the calculation of the total amount claimed. The reasonable disbursements total $2,078.40, inclusive of HST, not $1,310.25. It appears that the School Board forgot to include the $768.15 spent for the discovery transcripts when adding up the sub-totalled categories of disbursements. [ 40 ] No HST is to be added to the costs award.

Therefore, Mr. Bonitto shall pay, to the School Board, a total of $13,500 in costs, plus $2,078.40 in disbursements, inclusive of HST. [ 41 ] Mr. Bonitto shall have 30 days from the issuance of the order emanating from this decision to pay those amounts. [ 42 ] I ask counsel for the School Board to prepare the order. Muise, J.