Warren v. Football Canada, 2020 NSSC 183

SUPREME COURT OF Nova Scotia Citation: Warren v. Football Canada, 2020 NSSC 183 Date: 20200610 Docket: Halifax, No. 478787 Registry: Halifax Between: Jason Kristian Warren Applicant v. Canadian Amateur Football Association (Football Canada) Respondent DECISION ON COSTS Judge: The Honourable Justice Kevin Coady Heard: September 25, 26, 30, October 1, 2019, in Halifax, Nova Scotia Written Decision: June 10, 2020 Counsel: Nasha Nijhawan, for the Applicant Sean Kelly and Richard Jordan, for the Respondent By the Court: [ 1 ] Mr. Warren’s Application in Court was heard over four days in September/October 2019.

In my decision at 2020 NSSC 29 , I dismissed Mr. Warren’s Application in its entirety. I have been provided with written submissions on costs and this is my decision. Procedural History : [ 2 ] In order to fully understand this decision, it will be helpful to review the procedural history of this dispute. • On April 10, 2018 Mr. Warren started an action against Football Canada by way of a Notice of Application in Chambers. • The Application in Chambers was discontinued on July 30, 2018. • Also, on July 30, 2018 Mr.

Warren started a new action against both Football Canada and Football Nova Scotia by way of an Application in Court. • On February 25, 2019, Mr. Warren discontinued the Application in Court against Football Nova Scotia. Costs were not resolved. • On July 4, 2019 Justice Rosinski released a decision deferring Football Nova Scotia’s cost application until the application against Football Canada was heard and decided. I will be determining both costs applications in this decision. Position of the Parties : [ 3 ] Football Nova Scotia spent $53,700 in legal fees between July 2018 and January 2019.

In addition, there were $864.10 in disbursements. Football Nova Scotia is requesting a $25,000 lump sum award plus disbursements. Mr. Warren argues that each party bear their own costs, or in the alternative, tariff costs reduced to $2,500. He pleads financial hardship and questions the integrity of the fees and disbursements incurred. He feels that because Stewart McKelvey represented both Respondents there must be an overlap of services. [ 4 ] Football Canada spent $271,525 in legal fees between July 2018 and October 2019.

In addition, it spent $19,733 in disbursements, of which $17,077.50 was paid to its expert, Dr. Rosenberg. Football Canada is requesting a $175,000 lump sum award plus disbursements. Once again, Mr. Warren pleads financial hardship and questions the integrity of the accounts. Mr. Warren submits

that if a costs award is made it should be in the reduced tariff amount of $12,500. Lump Sum or Tariff : [ 5 ] I have determined that lump sum awards are most appropriate in these applications. The parties have provided their approach to the tariffs. I have reviewed those calculations and conclude that they have to be increased or reduced to arrive at a figure that represents a substantial contribution.

Civil Procedure Rule 77.08 states that “a Judge may award lump sum costs instead of tariff costs.” [ 6 ] I have also decided to adopt a “lump sum” approach given the difficulty settling on an “amount involved” as required by the tariff. This is not to suggest that such an exercise would be impossible. However, I conclude that a lump sum is the most effective approach. Civil Procedure Rule 77.02 states as follows:

(1) A presiding judge may, at any time, make any order about costs as the judge is satisfied will do justice between the parties.

(2) Nothing in these Rules limits the general discretion of a judge to make any order about costs, except costs that are awarded after acceptance of a formal offer to settle under Rule 10.05, of Rule 10 – Settlement. I am satisfied that the foremost way to achieve justice between the parties is to make lump sum awards. [ 7 ] In Bevis v. CTV Inc. , 2004 NSSC 209 , Justice Moir commented at para. 13: …

(1) Costs are normally set in accordance with the Tariff.

(2) However, the Tariff system serves the principle of a substantial but incomplete indemnity. The Courts do not choose artificial means, such as selection of an artificial “amount involved”, in order to make the Tariff serve the principle. Therefore, when reasonable approaches to amount involved or scale under the Tariff fail to produce substantial but partial indemnity, the Court may resort to its discretion under rule 63.02(

a) and order a lump sum.

(3) To settle an appropriate lump sum the Court will have regard to the actual costs facing the successful party or the labour expended by counsel, but the Court will seek to settle the amount objectively in conformity with one of the policies of the Tariff, to provide an indemnity that has nothing to do with the peculiarities of counsel’s retention. The Court will attempt to provide a substantial but partial indemnity against what would ordinarily be charged by any competent lawyer for like services.

(4) Finally, the Courts have usually avoided percentages. Substantial but partial indemnity is a principle but not a formula. Given the outcome I have in mind, lump sum is the best way to get there. Financial Hardship : [ 8 ] Mr. Warren argues that he is unable to pay a significant costs award and even a modest contribution, as proposed, will have a significant impact on his financial well-being. Mr. Warren’s financial and asset situation is before the Court by way of affidavit. He earns $67,000 per annum and has no investments or savings.

His home and vehicle are fully mortgaged and he has over $40,000 in consumer debt. [ 9 ] Mr. Warren relies on Justice Campbell’s decision in Big X Holdings v. Royal Bank of Canada, 2015 NSSC 350 , in support of his financial hardship submissions. He argues that any cost award should reflect the principles of proportionality and restraint. While Justice Campbell spoke extensively about these principles, he also spoke about responsibility for ill-considered choices. He stated at paras. 23 and 25: That is a harsh reality to have to face. It seems Mr.

McNeil in frustration turned to litigation as a substitute for confronting this reality. But that sympathy cannot insulate him for responsibility for how he reacted and for the series of decisions that brought this matter to trial. And further, at paras. 49 and 72: Mr. McNeil should be held responsible for his decisions. RBC should not be required to fund his principled conviction that he was right or to pay for his stubbornness. At the same time an award of costs that totally destroys him financially would be disproportionate to any value it would serve to RBC or to the administration of justice.

People are responsible for their actions even when they involve tilting at very large windmills. The trial evidence led me to conclude that Mr. Warren was insisting on litigation without fully assessing the merits of his claims or without resorting to amateur sports alternative dispute mechanism. [ 10 ] The final paragraph in my trial decision speaks volumes about Mr. Warren’s approach to this case: It is most unfortunate that Mr. Warren made decisions that caused him such mental distress and reputational harm. He developed a blind spot in relation to the JL event.

Instead of learning from that lapse in judgment, he immediately went on the defensive and maintained that attitude to the time of trial. Mr. Warren viewed himself as a victim and has not been able to shake that view. He was not able to see the many off-ramps that were available to him along the way. There were numerous opportunities to resolve this dispute in a way that would have preserved his relationship in the football community. Instead of taking advantage of these opportunities, he dug in his heels. I did not detect that any of the Respondent’s witnesses harbored any animus towards Mr. Warren. Mr.

Warren created his own problems, ultimately driving a wedge between himself and those who had historically valued his contribution to the football community. It is that wedge that caused him to become an outlier. While my decision will reflect restraint, it will also establish a degree of responsibility for choices made throughout. [ 11 ] Civil Procedure Rule 77.04(1) states as follows:

A party who cannot afford to pay costs and for whom the risk of an award of costs is a serious impediment to making, defending, orcontesting a claim may make a motion for an order that the party is to pay no costs in the proceeding in which the claim is made. Mr. Warren did not avail himself of this option. An Application pursuant to this Rule would have addressed any “access to justice”issues at play. Nonetheless, Civil Procedure Rule 77.02 allows the Court to consider financial hardship in court Applications. Account Integrity: [12] Mr.

Warren made the following submission at para. 23 of his costs brief: The evidence filed by the Respondents indicates that at least four lawyers from Stewart McKelvey acted interchangeably for bothRespondents on this matter, with additional ‘other lawyers’ providing assistance during the hearing. Mr. Kelly appeared in all cases forboth Respondents, and was always accompanied by junior counsel or an articled clerk.

In the absence of any indication from FootballCanada or Football Nova Scotia as to the distribution of work as between lawyers, any duplication of efforts or interoffice conferencing,or the seniority and relative rates charged, it is impossible for the Court to determine the reasonableness of a team approach based on thecomplexity of the litigation. It is also noted that one junior lawyer was replaced in the middle of the litigation owing to a maternity leave– there is no accounting provided for any time spent getting a new junior lawyer up to speed. Essentially Mr.

Warren argues, on what is before me, that it is impossible to determine if the fees charged are reasonable. He relies onJeffrie v. Hendrickson, 2013 NSSC 153 and MacCormick v. Dewar, 2011 NSSC 10, both trial level decisions. [13] In Jeffrie, supra, Justice Wood (as he then was) stated at para. 11: The Respondent’s claim for a lump sum award of costs is premised on the position that their legal expenses are approximately$175,000. They have provided no evidence whatsoever which would allow the Court to assess whether that is the case. [14] In MacCormick, supra, the issue was whether to increase tariff costs.

Justice Bourgeois stated at para. 13: Parties putting forward an argument that party and party costs should be increased to reflect a ‘substantial contribution’ to legal fees,should be prepared to have some evidence before the Court and to permit it to knowledgeably and objectively assess that argument. [15] In this case, Football Canada and Football Nova Scotia’s legal fees and disbursements are sworn to by affidavits of theircounsel. [16] In DRL Coachlines Ltd. v.

GE Canada Equipment Financing GP, 2011 NSCA 23, the Court affirmed that it is not necessaryfor a successful party to provide information as to actual legal expenses. Justice Oland stated at para. 34: … According to Ms. Roberts-Tetford, information as to actual legal expenses is necessary in order to satisfy the principle that a costsaward is to provide a substantial but partial indemnity for the legal expenses incurred by the successful party. In support of herargument, she refers to Williamson v. Williams, 1998 NSCA 195 , [1998] N.S.J. No. 498 (C.A.), Founders Square Ltd. v.

NovaScotia (Attorney General) (2000), 2000 NSSC 70 , 186 N.S.R. (2d) 189 and Bevis v. CTV Inc., 2004 NSSC 209. With respect,none of these cases demonstrates that, failing receipt of material establishing actual legal costs, a judge must not award costs using thetariffs and must award a lump sum. I can find no error in legal principle nor a manifest injustice in this discretionary costs decision. Iwould dismiss the appeal against costs. This principle was applied by Justice Warner in Wadden v.

BMO Nesbitt Burns, 2014 NSSC 48. [17] I am satisfied that I have sufficient details and information before me to determine an appropriate lump sum award. Disbursements: [18] Football Nova Scotia seeks $864.10 in disbursements. This figure is comprised of scanning, photocopies and printing and arebefore me by way of affidavit. I take no issue with these disbursements. [19] Football Canada seeks $19,733 in disbursements, broken down as follows: • Expert fees – Dr.

Rosenberg $17,077.50• Photocopies (@ $0.10 per page) $216.20• Courier Fees $195.27• Travel Expenses $2,244.90 The only item I take issue with is the expert fee. [20] Dr. Rosenberg provided the Court with an eight-page report and testified in court for less than one hour. He met with Mr.Warren once and reviewed his limited medical history. This fee is entirely unsupportable. I am only approving $5,000.

Conclusion: [21] Football Nova Scotia will have its costs in the amount of $5,000 plus disbursements of $864.10 for a total of $5,864.10. [22] Football Canada will have its costs in the amount of $25,000 plus disbursements of $7,656.37 for a total award of $32,656.37. [23] I direct that an order be prepared by the Respondent setting out the above costs awards, payable by July 31, 2020.

Coady, J.