Jesty v. Vincent A. Gillis Inc., 2019 NSSC 355

SUPREME COURT OF Nova Scotia Citation: Jesty v. Vincent A. Gillis Inc. , 2019 NSSC 355 Date: 20191126 Docket: Syd. No. 474447 Registry: Sydney Between: Albert Jesty and Marlene Jesty Plaintiffs/Respondents v. Vincent A. Gillis Inc. Defendant/Applicant Decision on Costs Judge: The Honourable Justice Robin Gogan Heard: July 15, 2019, in Sydney, Nova Scotia Final Written Submissions: October 21, 2019 Counsel: Albert Jesty, in person, for the Plaintiffs/Respondents Stephen Kingston, for the Defendant/Applicant By the Court: INTRODUCTION [ 1 ] This is a decision on costs following a motion for

summary judgement on evidence. The main decision is reported as Jesty v. Vincent A. Gillis Inc. , 2019 NSSC 320 . [ 2 ] The defendant was successful on the motion.

Summary judgement was granted. Failing agreement, the parties were directed to make written submissions on costs no later than October 14, 2019. Submissions were received from the defendant. The plaintiffs did not provide any submission BACGROUND [ 3 ] This decision comes at the end of a lengthy and dated set of events detailed in the main decision. The Jestys commenced an action against Gillis on March 20, 2018 in relation to events that dated to the fall of 2006. A defence was filed on March 28, 2018 relying, inter alia , on the provisions of the Limitations of Actions Act , S.N.S. 2014, c. 35 . Gillis brought the

summary judgment motion on February 26, 2019. It was contested by the Jestys. Affidavits and written submissions were filed. The hearing took place on July 15, 2019 and took less than a half day of court time. There were supplementary submissions filed. The Jestys were self-represented throughout. ISSUE [ 4 ] The only remaining issue is the appropriate quantum of costs for Gillis. POSITION OF THE PARTIES [ 5 ] Gillis provided a written submission seeking costs and disbursements in the amount of $3,383.59. This amount is determined in accordance with Civil Procedure Rule 77 and Tariff C .

Gillis asks that the multiplier of three be applied to the high end of the basic range of costs in recognition of the amount of material filed, as well as the nature and quantum of the claims advanced in the proceeding. It is acknowledged that the substance of the motion was not particularly complex. [ 6 ] The Jestys did not provide any position on costs. ANALYSIS

[ 7 ] A successful and well behaved party is entitled to costs. An award of costs is in the discretion of the court and must do justice between the parties. The starting point is Tariff C which guides the assessment of costs following a motion in Chambers: Tariff C Tariff of Costs payable following an Application heard in Chambers by the Supreme Court of Nova Scotia For applications heard in Chambers the following guidelines shall apply: …

(3) In the exercise of discretion to award costs, following an application, a Judge presiding in Chambers, notwithstanding this Tariff C, may award costs that are just and appropriate in the circumstances of the application.

(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the judge presiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending on the following factors: (

a) the complexity of the matter, (

b) the importance of the matter to the parties, (

c) the amount of effort involved in preparing for an conducting the application. (such applications might include, but are not limited to, successful applications for

Summary Judgement, judicial review of an inferior tribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction) Length of Hearing of the Application Range of Costs Less than 1 hour $250 - $500 More than 1 hour but less than ½ day $750 - $1000 More than ½ day but less than 1 day $1000 - $2000 1 day or more $2000 per full day [ 8 ] This is a motion that disposed of the proceeding. It took less than a half day of court time.

I begin with the premise that the appropriate range of costs under the Tariff is between $750.00 - $1,000.00. [ 9 ] I must consider whether the basic amount of costs should be subject to a multiplier. Gillis says that a multiplier of three is appropriate given the amount of documentation involved, the quantum of damages claimed in the proceeding, and the nature of the allegations. As I understand it, Gillis says that while the matter was not overly complex, there was much at stake resulting in a high degree of effort relative to the court time required.

To this I would observe that the relevant documentation spanned a considerable period of time, and multiple levels of court over a variety of proceedings. [ 10 ] I refer to the recent decision of Brothers, J. in 3021386 Nova Scotia Limited v. Municipality of the District of Barrington , 2019 NSSC 337 . In that case, costs were assessed following two unsuccessful motions for

summary judgement on evidence. Each motion took one-full day. Justice Brothers awarded the plaintiff $2,000.00 on each motion relying on the reasons of Warner, J. in Coady v. Burton Canada , 2012 NSSC 257 , affirmed 2013 NSCA 95 . [ 11 ] This matter was not particularly complex. I agree however, that the nature of the allegations and the damages claimed gave the matter a high degree of importance. I further agree that the effort expended was high relative to the time it took to dispose of in court.

This was the result of the age of the allegations, the multiplicity of relevant proceedings, and the fact that new issues arose late in the motion necessitating supplementary submissions. [ 12 ] On this basis, I find it appropriate to apply a multiplier of two to the high end of the basic range. This results in a award of costs to Gillis in the amount of $2,000.00 This cost award shall be inclusive of disbursements and payable forthwith. [ 13 ] Order accordingly. Gogan, J.