MacIntyre v Ranni, 2016 NSSC 238

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: MacIntyre v Ranni , 2016 NSSC 238 Date: 2016-09-12 Docket: SFSND No. 1206-006133 Registry: Sydney Between: Stephen Paul MacIntyre Applicant v. Sandra Patricia Ranni Respondent Judge: The Honourable Justice Lee Anne MacLeod-Archer Heard: May 2, 2016, in Sydney, Nova Scotia Written Release: September 12, 2016 Counsel: Stephen MacIntyre, Self-Represented Carolyn MacAulay for the Respondent By the Court: BACKGROUND [ 1 ] A divorce hearing was held and the court rendered its decision on September 29, 2014.

Disagreements arose with respect to the form of the Corollary Relief Order and a pre-trial conference was held in January, 2015 to resolve the outstanding issues. Eventually the Corollary Relief Order was submitted and was issued on March 10, 2015. [ 2 ] In the meantime, Mr. MacIntyre filed a motion seeking a stay of the Corollary Relief Order and for damages arising from the condition of the home, which under the Corollary Relief Order he was entitled to retain. He had taken possession of the home in February, 2015 when he vacated the cabin, which Ms. Ranni subsequently took possession of. [ 3 ] Ms.

Ranni responded to the motion. She also countered with a claim for damages to the cabin and asked the court to set off the damages to each property. [ 4 ] There were a number of court appearances after the initial motion was filed, and deadlines were set for documents to be filed with the court. Mr. MacIntyre filed an ex parte motion on May 26, 2015 seeking enforcement of the Corollary Relief Order (contrary to his earlier request for a stay) and the matter was heard. His motion was dismissed, and Ms.

Ranni was awarded costs of $2,500.00. [ 5 ] Hearing dates on the original motion were set for June, 2015 but those dates were adjourned at Mr. MacIntyre’s request. He appeared in court and advised that he had health problems and could not participate in the hearing. He provided a letter from his physician indicating he was unable to work. The court directed him to file a more detailed report, but granted the adjournment in the meantime. Ms. Ranni had travelled from Northwest Territories for that hearing. [ 6 ] The matter was brought back before the court for an update on Mr.

MacIntyre’s condition on August 31, 2015. By that time, Mr. MacIntyre had not filed any further medical evidence to support his claim that he was physically unable to participate in a hearing. Hearing dates were therefore scheduled, and deadlines were set for the filing of additional materials. [ 7 ] Mr. MacIntyre then filed another motion on February 26, 2016. His motion was heard and dismissed and he was ordered to pay costs to Ms. Ranni in the amount of $1,500.00.

[ 8 ] The trial dates on the original motion were set for May 2, 3 and 4, 2016. At the outset of that hearing, the court enquired into its jurisdiction to determine the motion, given the fact that the Corollary Relief Order dealt with the very same issues raised by Mr. MacIntyre. After hearing submissions from both parties, the court dismissed the motion. The issues were determined to be res judicata . [ 9 ] Counsel for Ms. Ranni filed submissions on costs. Ms. Ranni seeks solicitor/client costs of $12,000.00 to compensate her for the numerous court appearances, filings and communications with Mr. MacIntyre.

She concedes this figure is close to her actual legal expenses but is not 100% reimbursement. She notes that she also incurred the cost of counsel during the divorce hearing, in which no costs were awarded. [ 10 ] Ms. Ranni’s position is that she was wholly successful in having the Respondent’s motion dismissed. Mr. MacIntyre refutes this. He asks that no costs be awarded, citing a number of reasons. First, he points out that it was the court’s enquiry with respect to jurisdiction which lead to the motion being dismissed. He does not see this as a successful argument advanced by Ms.

Ranni. [ 11 ] Secondly, he asserts that Ms. Ranni was not reasonable in her approach to the motion, refusing to participate in a settlement conference, and refusing to negotiate with him at all. [ 12 ] Next, he relies upon his impecuniosity, asking the court to refuse an order for costs because he cannot afford to pay. He points out that there is already $4,000.00 owing in costs to Ms. Ranni which remains unpaid. [ 13 ] Mr.

MacIntyre raises several other points, none of which I will address in this decision, because they are effectively an attempt to reargue the issues decided by the court. [ 14 ] As counsel for Ms. Ranni points out, costs are governed by Civil Procedure Rule 77 and are in the discretion of the court. She cites the court’s decision in Jessome v.

Desmarias , 2014 NSSC 373 at paragraph 16 in which I stated: 16 As noted by Justice Forgeron in Cameron ( supra ): * the court's overall mandate in awarding costs is to "do justice between the parties"; * party and party costs are the norm and are to be quantified according the Tariffs found in the Civil Procedure Rules; * costs are in the discretion of the court; * the amount set out in those Tariffs may be adjusted in accordance with certain factors, including written settlement offers which were not accepted, the conduct of the parties insofar as it affects the speed or expense of the proceeding, and the positions taken by the parties; * Civil Procedure Rule 77 permits the court to award lump sum costs apart from Tariff costs in certain circumstances, with the basic principle being that cost awards reflect a substantial contribution to the parties' reasonable fees and expenses. [ 15 ] She also cites the decision in Cameron v.

Cameron , 2014 NSSC 325 where Justice Forgeron noted that solicitor/client costs are awarded in “rare and exceptional circumstances, as when misconduct has occurred in the conduct of or related to the litigation”. [ 16 ] Ms. Ranni seeks solicitor / client costs rather than party and party costs. She points out that there is no clear amount involved, and there was no hearing. The matter was dismissed on a jurisdictional issue. However, much preparation and many pre-trial appearances were required to get to that point. [ 17 ] Ms.

Ranni says that Tariff C would not be appropriate in calculating costs because of the additional work involved in dealing with a self-represented litigant who corresponded with her counsel frequently, presented interrogatories, and presented an extensive witness list (but no expert reports which complied with Rule 55 ). She also raises the cost of travel from the Northwest Territories to respond to the motion when it was adjourned, and again on the rescheduled date. [ 18 ] Ms. Ranni argues that although Mr. MacIntyre made many offers to settle, none of the offers resembled the decision of the court.

She is incorrect in her submission that the Civil Procedure Rules exclude consideration of offers when assessing costs in family matters. However, the point is moot because Mr. MacIntyre did not rely upon any particular offer in his costs submissions. [ 19 ] Although the motion was dismissed without a hearing, Ms. Ranni was the successful litigant. Mr. MacIntyre was unsuccessful in his motion. [ 20 ] I have considered the submissions of both parties and the background to this motion. I have also considered the case authorities submitted by both parties and the Civil Procedure Rules. I award costs to Ms.

Ranni under Tariff C in the amount of $5,250.00 plus HST, and disbursements of $1,178.64 plus HST of $164.27 for a total of $7,380.41. In addition, Ms. Ranni will be compensated for the cost of her airfare in June, 2015, when the matter was adjourned without notice at the request of Mr. MacIntyre. The airfare amounts to $845.31 inclusive. [ 21 ] Costs of $8,225.72 are payable within 30 days, failing which they may be enforced through Maintenance Enforcement. Counsel for Ms. Ranni will prepare the order. MacLeod-Archer, J.