McInnis v. Stone, 2016 NSSC 212

Supreme Court of Nova Scotia Citation: McInnis v. Stone , 2016 NSSC 212 Date: 20160812 Docket: Hfx. No. 427425 Registry: Halifax Between: Thomas McInnis Applicant v. Daniel Joseph Stone and Francine Stone Respondents Library Heading Judge: The Honourable Justice Arthur W.D. Pickup Final Written Submissions: May 2, 2016, Applicant’s submission on costs May 26, 2016, Respondents’ submission on costs May 30, 2016, Applicant’s reply submission on costs Written Decision: Subject: August 12, 2016 Costs; solicitor-client costs; real property

Summary: The respondents claimed land actually owned by the applicant, and took steps to take over a portion of his property. On the application, the respondents’ claims to possessory title, or title by lost modern grant, were rejected. The applicant was awarded general damages and punitive damages. He sought solicitor-client costs, plus disbursements. The respondents argued that costs should be based on the tariffs, or a lump-sum short of the quantum of solicitor-client costs. Issues: What was the appropriate costs order?

Result: This was one of the rare and exceptional cases where solicitor-client costs were appropriate, due to the calculated, malicious, and inexcusable behaviour of the respondents, who attempted to exclude the applicant from lands that they knew were not part of their property. They then concocted legal arguments after the fact in an attempt to support their behaviour. The applicant should not have been put to any expense to defend himself and protect his property. The applicant received all of his claimed disbursements. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: McInnis v. Stone , 2016 NSSC 212 Date: 20160812 Docket: Hfx. No. 427425 Registry: Halifax Between: Thomas J. McInnis Applicant v. Daniel Joseph Stone and Francine Stone

Respondents Decision on Costs Judge: The Honourable Justice Arthur W.D. Pickup Final Written Submissions: May 2, 2016, Applicant’s submission on costs May 26, 2016, Respondents’ submission on costs May 30, 2016, Applicant’s reply submission on costs Counsel: Tipper McEwan and Daniel MacKenize, for the Applicant Robert Pineo and Leslie Sawers, for the Respondents By the Court: [ 1 ] This is a decision on costs. Mr. McInnis was the successful party in the matter, which was heard in October 2015 and costs were awarded to him.

This proceeding is to determine the quantum of costs. [ 2 ] The main decision is reported at 2016 NSSC 69 . It involved a dispute over the ownership of a piece of Mr. McInnis’s land, which the Stones claimed on possessory grounds, or on the basis of lost modern grant. I awarded Mr. McInnis general damages, as well as punitive damages, for the Stones’ trespass on his property. Position of the Parties Mr. McInnis [ 3 ] Mr.

McInnis seeks solicitor/client costs of $52,654.00 or, in the alternative, lump sum costs of $41,592.40, representing costs of $31,592.40 (60% of his actual costs), plus a premium of $10,000.00 as a result of his success relative to his settlement offers, and because of the complexity caused by the Stones’ changing positions on several issues in the litigation. [ 4 ] As well, Mr. McInnis seeks disbursements in the amount of $17,915.69, which includes title searches, surveying and other generic disbursements, such as photocopying.

The Stones [ 5 ] The Stones say that neither costs on a solicitor/client basis nor a lump sum are appropriate, arguing that costs should be awarded on the tariff system. In the alternative the Stones submit that costs should be awarded in a lump sum, but based on a lower percentage contribution to the applicant’s legal bill. [ 6 ] The issues, therefore, are as follows: i. Should costs be awarded on a solicitor/client basis? ii. In the alternative, should costs be awarded on a lump sum basis? iii. In the alternative, should costs be awarded under Tariff A? iv.

To what quantum of disbursements in the applicant entitled? Analysis i. Should costs be awarded on a solicitor/client basis? [ 7 ] Mr. McInnis seeks solicitor/client costs of $52,654.00. He says the Stones acted maliciously to try to take his land and he should be fully indemnified for the costs. [ 8 ] Rule 77.03(2) allows for solicitor/client costs:

(2) A judge may order a party to pay solicitor and client costs to another party in exceptional circumstances recognized by law.

[9] The principles to apply to a determination of solicitor/client costs are summarized in Thomas v. Yuill Auto Works, 2013 NSSC142 at para. 10: 10 Solicitor/client costs were discussed by Justice Hood in Smith's Field Manor Development Ltd. v. Campbell, 2001 NSSC 44. Shestated as follows: 480 It is not disputed that solicitor-client cost awards are made only in rare and exceptional circumstances. In Amirault v. WestminerCanada Limited, et al (1994), (NS CA), 127 N.S.R. (2d) 241, the Court of Appeal upheld the decision of Nunn, J., thetrial judge, [1993] N.S.J. No. 129, with respect to costs.

The Court of Appeal quoted from his decision at para. 170: The plaintiffs in each of these actions are entitled to recover costs and on a solicitor client basis.

The character of the allegations involvedhere, fraud and dishonesty, and the circumstances here of the length of time of the outstanding allegations, their national publicity, thelength and extent of the pre-trial processes and the trial itself, the findings I have made regarding injury to reputations and the lack of anyreal proof of fraud or dishonesty all contribute to making this a proper situation to award costs on a solicitor client basis as, in myopinion, this does constitute one of those 'rare and exceptional' cases wherein such awards are, and should, be made. 481 In The Law of Costs, Orkin, 2nd Edition, the authors say at pp. 2-144-146: An award of costs on the solicitor-and-client scale, it has been said, is ordered only in rare and exceptional circumstances to mark thecourt's disapproval of the conduct of a party in the litigation.

The principle guiding the decision to award solicitor-and-client costs hasbeen enunciated thus: [S]olicitor-and-client costs should not be awarded unless there is some form of reprehensible conduct, either in the circumstances givingrise to the cause of action, or in the proceedings, which make such costs desirable as a form of chastisement. The Supreme Court ofCanada has approved the following statement of principle: Solicitor-and-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part ofone of the parties. ...

At the same time, it has been said that an award of solicitor-and-client costs is not reserved for cases where the court wishes to show itsdisapproval of oppressive or contemptuous conduct. There is, as well, a factor frequently underlying such an award, although not necessarily expressed, namely, that the circumstances of thecase may be such that the successful party ought not to be put to any expense for costs. ...

As well, an award of costs on the solicitor-and-client scale is an important device that the courts may use to discourage harassment of another party by the pursuit of fruitless litigation. [10] In the main decision I found that the acts of trespass and the Stones’ claim to McInnis lands were made maliciously. Thesecomments bear repeating: 143. The land grab by the respondents escalated. They began a series of actions to claim the land. 144. When the applicant and his spouse entered their property Mr. Stone would call the police.

He did so on numerous occasions;even on one occasion when the applicant was there with his legal counsel. In his affidavit the applicant stated: 173. When we did go to the property just to go for a walk or sit in our chairs, Mr. Stone called the police and they would come to ourhome, no matter the time of day. I’ve been called down from my bed. We have been literally shut out of the McInnis Property virtuallysince the Stones moved in to the Stone Property and put their boat in the water in 2011. 145.

The respondents put a fire pit on the disputed land and excavated and graded from the Stone property beyond the westernboundary line and onto the McInnis property. 146. The applicant testified that in 2012 the respondents virtually took over his property. Despite being advised at the time ofpurchase that the disputed lands were not part of their property, despite the Parker survey and advice from the applicant that they had nointerest in the disputed lands, the intrusions continued by the respondents. The respondents’ intentions were clear. In his affidavit, Mr.McInnis stated: 193.

On one occasion in 2013 on a Saturday afternoon, I saw Mr. Stone at the fire pit that he had constructed in the recently leveledand now Disputed Lands. Mr. Stone looked at me and smiled and said “Tom, I am going right down to the bottom” and waved to thewater . 147. I find the actions of the respondents to have been calculated, malicious, inexcusable and a departure from a standard of decentbehaviour. Their actions virtually robbed the applicant of the use and enjoyment of his property from at least 2012.

He was literallyforced off the land he bought, surveyed and registered under the LRA. [11] The Stones were very aware that the disputed land and water access was not included with their property when they viewed itand bought it. They were told so. They did not wait for a court determination of the matter but embarked on a series of actions toexclude Mr. McInnis from his lands that had been purchased and surveyed by him, and registered under the land registry system. [12] This is one of those rare and exceptional circumstances where solicitor/client costs should apply.

As I have said, despite beingtold they had no claim to Mr. McInnis’s land at the time they purchased it, they did everything possible to take Mr. McInnis’s lands,including preventing him accessing his lands. The Stones systematically advanced into his lands, then cobbled together legal argumentsafter the fact to justify their actions. Mr. McInnis should not be put to any expense for costs to defend himself and protest his property

under these circumstances. [ 13 ] I have reviewed the claim of $52,654.00 for solicitor/client costs and find it is reasonable, given the number of issues, numerous affidavits and the use of written closings. I order costs in the amount $52,654.00 to be paid by the Stones. Disbursements [ 14 ] I have reviewed the affidavit of Daniel MacKenzie which sets out the disbursements being claimed. [ 15 ] Counsel for the Stones challenge: i. the invoice of $6,828.21 from Cassidy Nearing Berryman at Exhibit 3; ii. the fact that two surveys were completed by Longstaff Parker Surveys in 2014 and 2016; and iii. photocopies.

Invoice: Cassidy Nearing Berryman [ 16 ] Mr. Berryman filed an affidavit which contained his title search and work product. This work was required because the Stones initially claimed paper title, a claim they abandoned prior to trial. I am satisfied this account is reasonable. Two surveys completed by Lonstaff Parker Surveys [ 17 ] There was no second survey, as pointed out by counsel for Mr. McInnis. The cost was for Mr. Parker’s attendance at trial, which was required by the Stones so that he could be cross-examined. I have reviewed his account and I find his account to be reasonable.

Photocopies [ 18 ] Counsel for the Stones seek a reduction by fifty percent for photocopying fees. [ 19 ] At para. 9 of Daniel MacKenzie’s affidavit he states photocopying was done internally at the rate of $0.10 per page. I find this reasonable and allow this disbursement. [ 20 ] Therefore, costs are in the amount of $52,654.00, plus disbursements in the amount of $17,915.69, for a total of $70,569.69. Pickup, J.