Victor Landscaping & Excavation Inc. v. Osborne, 2020 NSSC 216

SUPREME COURT OF Nova Scotia Citation: Victor Landscaping & Excavation Inc. v. Osborne , 2020 NSSC 216 Date: 20200813 Docket: Hfx No. 477660 Registry: Halifax Between: Victor Landscaping & Excavation Inc. Plaintiff v. Robert Osborne Defendant Decision: Costs Judge: The Honourable Justice Joshua M.

Arnold Heard: December 16 and 17, 2019, in Halifax, Nova Scotia Written Submissions: Plaintiff: April 22, 2020 Defendant: May 8 and 10, 2020 Counsel: Robert Mroz, for the Plaintiff Robert Osborne, Defendant, Self-Represented By the Court: Background [ 1 ] The defendant hired the plaintiff to do landscaping and excavation work on a lot he was developing. The work was carried out in 2016 and 2017. On June 22, 2018, the plaintiff filed an action against the defendant for non-payment of invoices totaling $84,242.65.

The defendant claimed that the parties had agreed to a flat fee for the work, and that he had already paid it in full. [ 2 ] This matter was heard over two full days. In my decision dated March 19, 2020 ( 2020 NSSC 84 ), I accepted the evidence of Nicholas Victor, the owner of the plaintiff company, that the parties had initially agreed to a flat rate for the work, but later changed it to a "time and materials" arrangement after Mr. Victor discovered that the terrain was wet and contained a lot of peat moss, making the work more difficult.

The defendant’s testimony was both internally inconsistent and inconsistent with the documentary evidence, and I rejected it. I held that the defendant owed the plaintiff $84,242.65, plus interest. [ 3 ] This decision deals with costs. Positions of the parties [ 4 ] The plaintiff seeks an order for lump sum costs, as authorized by Civil Procedure Rule 77.08. For a two-day trial with an “amount involved” of $84,242.65, the total amount of Scale 2 (Basic) costs under Tariff A would be $13,750.

The plaintiff notes that in May 2019, when the defendant had counsel, he rejected a written offer to settle for $70,000, which was less than the damages awarded

against him at trial. This is a factor that can be considered by the court when assessing costs.

The plaintiff acknowledges, however, that the matter was not complex, and that the defendant was self-represented at trial, both of which are also relevant to the court’s analysis. [ 5 ] Taking into account the lack of complexity, the fact that the defendant was represented by counsel through a significant number of pre-trial procedures, and the defendant’s failure to accept a favourable settlement offer while represented by counsel, the plaintiff requests lump sum costs of $9,000, which is less than the amount under Scale 1 of Tariff A, with the allowance of $2,000 per day of trial.

The plaintiff also claims $1,617.88 for reasonable disbursements, and $8,805.09 in prejudgment interest. It calculates prejudgment interest by applying a rate of 5% per annum from February 15, 2018 – the date the defendant refused the plaintiff’s demand for payment – to March 19, 2020, the date of judgment. Accordingly, the total amount requested by the plaintiff for costs, disbursements, and pre-judgment interest is $19,422.97. [ 6 ] The defendant was self-represented at trial and prepared his own short submissions on costs. Interpreting the tariffs is challenging for self-represented litigants.

The defendant states, erroneously, that “costs for a trial are typically assessed in accordance with Tariff C” and says the plaintiff should receive costs in the range of $2,750-$3,000. Law [ 7 ] In Pink v. Davis , 2015 NSSC 47 , Coughlan J. reviewed the principles that apply to costs awards, as set out in Civil Procedure Rule 77: [10] The following principles are set out in the Civil Procedure Rules: In determining appropriate costs in a proceeding the Court is to “do justice between the parties” (Rule 77.02(1)).

Costs of a proceeding follow the result, unless, a Judge orders or a Rule provides otherwise (Rule 77.03(3)). Unless a Judge orders otherwise party and party costs are fixed according to the tariffs reproduced at the end of Rule 77 (Rule 77.06(1)). The tariff amount may be increased or decreased Rule 77.01(1). Rule 77.07(2) sets out examples of factors which may be relevant in determining whether the tariff costs should be increased or decreased. A Judge may order lump sum costs instead of tariff costs (Rule 77.08).

An award of party and party costs includes necessary and reasonable disbursements pertaining to the subject of the award (Rule 77.10 (1)). [ 8 ] Following trial, Tariff A is the presumptive starting point in determining costs (Rule 77.06). Tariff C, on the other hand, applies to applications in Chambers. This was a two-day trial, not a Chambers application. I see no reason to deviate from Tariff A, which provides, in part: TARIFF A Tariff of Fees for Solicitor's Services Allowable to a Party Entitled to Costs on a Decision or Order in a Proceeding In applying this

Schedule the “length of trial” is to be fixed by a Trial Judge. The length of trial is an additional factor to be included in calculating costs under this Tariff and therefore two thousand dollars ($2000) shall be added to the amount calculated under this tariff for each day of trial as determined by the trial judge Amount Involved Scale 1(-25%) Scale 2 (Basic) Scale 3 (+25%) Less than $25,000 $3,000 $4,000 $5,000 $25,000-$40,000 $4,688 $6,250 $7,813 $40,001-$65,000 $5,138 $7,250 $9,063 $65,001-$90,000 $7,313 $9,750 $12,188 $90,001-$125,000 $9,188 $12,250 $15,313 … [ 9 ] The first step under Tariff A is to determine the “amount involved”. The

preamble to the tariffs directs the court to consider, where the main issue is a monetary claim: (

i) the amount allowed, (ii) the complexity of the proceeding, and (iii) the importance of the issues; [ 10 ] The amount allowed in this case was $84,242.65, being the total of the plaintiff’s unpaid invoices. The matter was not complex, and the importance of the issues to the parties was commensurate with the size of the claim. Neither party would easily absorb the loss of the amount claimed. In my view, $84,242.65 is the most suitable “amount involved” for costs purposes, and the lack of complexity will be relevant in determining the applicable scale.

[ 11 ] In Big X Holdings Inc. v. Royal Bank of Canada , 2015 NSSC 350 , Justice Jamie Campbell described the three scales: [39] Tariff A under Civil Procedure Rule 77.18 provides recovery based on three scales. The basic scale applies to most matters. More highly complex litigation will attract the higher scale, and uncomplicated litigation attracts the lower, reduced scale. ... [ 12 ] The plaintiff concedes that this matter was not complex. The plaintiff alleged that the contract between the parties was based on time and materials, while the defendant said it was a flat rate contract.

The court’s only task was to determine, based on the evidence, the true nature of the agreement between the parties. There was no dispute as to the relevant amount, so damages would either be $84,242.65, or zero. In my view, it would be reasonable to apply Scale 1 in this case. With an “amount involved” of $84,242.65, the plaintiff would be entitled to $7,313, plus $2,000 per each day of trial, for a total of $11,313. I must also consider, however, whether costs should be reduced because the defendant was self-represented at trial. [ 13 ] In Leigh v.

Belfast Mini-Mills Ltd. , 2011 NSSC 23 , the plaintiffs were represented by counsel when they filed an action against the defendants for breach of contract and negligence. Two years later, plaintiffs’ counsel received the court’s approval to withdraw. Following counsel’s withdrawal, the parties each filed various motions and applications, all of which were adjourned at the plaintiffs’ request. Justice Leblanc considered what impact, if any, the plaintiffs’ status as self-represented litigants should have on costs: [34] It is important to consider that the plaintiffs are self represented litigants.

Self-representation is not an infrequent occurrence where many parties are unable to finance or choose to act without legal counsel. Chief Justice of Canada has made reference to the frequency with which matters are before the courts where there are no counsel for the parties, in remarks made at The Empire Club of Canada on March 8, 2007. [35] From a review of the file, the plaintiffs have experienced difficulty in navigating the complex demands of the Rules. The plaintiffs have appeared on three occasions before this Court and they yet to have their motions heard.

Whenever difficulties have presented themselves, it appears that the plaintiffs have recognized and acknowledged that their difficulty in bringing matters forward and seeking adjournments was because that they were unaware of the provisions of the Civil Procedure Rules. [36] The plaintiffs’ inability to fully understand and apply the Rules is highly problematic. This is because the Rules act as a gateway between filing a proceeding and bringing the proceeding to a hearing or trial.

It is obvious that without these Rules, parties such as the plaintiffs would not be in a position to get matters to a hearing. [37] The question that has to be determined is whether courts should be more lenient in awarding costs against self-represented litigants. There are instances where leniency is warranted and, on the other hand, there are situations where no leniency should be extended to the self-represented parties. [Emphasis added] [ 14 ] Justice Leblanc referred to Crowe v.

The Manulife Financial Corporation , 2010 ONSC 3302 , where the court said: [13] Fixing the costs of a motion or proceeding against a self-represented party is always a challenging task. Courts struggle to balance the effects of the lack skilled technical advice available to litigants who are not represented by lawyers against the need for the courts, as adjudicators, to be, and to appear to be, indifferent between the interests of both parties to a lawsuit, represented or not. [14] That task is facilitated, to some extent, by recognizing the reality that self-represented litigants do not form a homogenous group.

On the contrary, their characteristics vary widely. […] [ 15 ] Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self- represented party, to pay close attention to the factors enumerated in … the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary … Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”. [15] Justice Leblanc recognized, however, that not all courts have adopted the same approach: [39] It must be noted, however, that other courts have been less sympathetic to self-represented litigants.

In Ross v. Charlottetown (City) , 2008 PECAD 6 the Prince Edward Island Supreme Court Appeal Division stated that the Rules do not discriminate against impecunious litigants and therefore they should be mindful to fight and win motions on pretrial matters that they are likely to clearly win. [40] In another case, Mills v. Jemmott , 2005 CarswellOnt 157 (Ont. S.C.J.) the Court addressed the problems facing self-represented litigants with the application or

interpretation of the Rules, at para. 10: I am also concerned about determining an amount for costs against an unrepresented litigant. I indicated earlier in these reasons that I am satisfied that much of the delay was brought about by the manner in which the plaintiff conducted for trial, and that much of this case was due to her refusal to accept adverse interlocutory decisions and her determination to proceed in the manner she thought best notwithstanding rulings from the bench that she do otherwise. However some of the delay can, in my view, be attributed to the fact that Mrs.

Mills is professionally unskilled in the Rules of Civil Procedure and of trial evidence. She is no stranger to the courts and has some other experience in conducting a trial. However, some of the mistakes she made were clearly ones brought about by her lack of experience and knowledge of these professional amount is.

With the ever-increasing number of unrepresented litigants appearing before the court, the judge, fixed with the responsibility of fixing costs, must take into account the delays and false starts which almost certainly will present themselves in the course of the trial. [41] I am mindful of these comments, and although I have taken that into consideration, it is important to remember that successful parties who have counsel should not be asked to subsidize the justice system’s failure to ensure access to justice or a self-represented

litigant’s choice not to hire counsel. [Emphasis added] [ 16 ] The plaintiffs in Leigh were ordered to pay $1,000 in what amounted to throw-away costs in relation to the adjournment they had obtained. [ 17 ] The plaintiff provided the court with several additional authorities where costs were awarded against self-represented litigants. In Asagwara v. Money Mart , 2015 ONSC 1065 , the successful defendants sought approximately $40,000 in partial indemnity costs after the plaintiff’s claims in slander, malicious prosecution, and intentional infliction of mental distress were dismissed following a three-day trial.

The plaintiff submitted that no costs should be ordered. The court considered the following in exercising its discretion to award $20,000 in costs: [3] In the exercise of my discretion, I have taken into account the factors under Rule 57.01 of the Rules of Civil Procedure. Without limiting that consideration, I find the following observations of particular significance: (

a) although the amount claimed was very substantial, the defendants could not have reasonably expected a damages award in that ballpark in any event; (

b) the trial was relatively short, and the self-represented plaintiff was constructive and did not cause any significant inefficiencies in the course of the trial; and, (

c) the defendants' witness list expanded beyond the witnesses identified at the pre-trial, affecting the plaintiff's reasonable expectations for the costs of the trial. [4] Overall, as the successful parties the defendants should have a costs award in their favour. However, I conclude that it should be reduced from the total amount claimed bearing in mind the submissions of the plaintiff and the need for the award to be reasonable overall. [ 18 ] In Dina’s Supermarket Inc. v. 651535 Ontario Limited , 2018 ONSC 5574 , the self-represented defendant was unsuccessful in his attempt to set aside a default judgment.

The court acknowledged that the defendant was self-represented, and held that an award of $9,308.91 plus disbursements was reasonable given the complex history of the matter and the work required to place a comprehensive record before the court on the plaintiff’s behalf. [ 19 ] Finally, in Attanayake v. Mikhail , 2019 ONSC 5692 , the court awarded costs and disbursements of $8,500 against the self- represented respondent following a one-day application hearing.

After citing Dina’s Supermarket and Crowe , the court concluded: [49] From the context of this case, I find that neither side unreasonably prolonged this proceeding or took unnecessary steps that the court has not already addressed. Given the relatively limited complexity of the main issue (i.e., involving the unjust enrichment and constructive trust arguments), I find that the total number of hours billed by Applicants' counsel is somewhat high.

I also accept that certain issues addressed on this application, such as the attachment of the writs and the equitable subrogation point, are not issues for which the Respondent should bear costs.

Accordingly, I am fixing costs on a partial indemnity scale in the amount of $8,500.00, inclusive of taxes and disbursements, which I find to be fair, proportional and reasonable for the Respondent to pay the Applicants for this matter in the circumstances of this case. [ 20 ] As the case law illustrates, there is no general rule that self-represented litigants are entitled to leniency when the court assesses costs against them. Costs against self-represented litigants will be assessed on a case-by-case basis.

In some cases, the unsuccessful party’s lack of counsel will have a greater impact on the progress and the cost of the litigation than in others. In this case, the defendant was only self-represented for a portion of the litigation. He was represented during discovery examinations, and when he rejected the formal offer to settle. Neither party filed any frivolous motions – or indeed any motions – while the defendant was self-represented, or otherwise created any undue delay. In my view, the defendant’s lack of counsel at trial had minimal impact on this proceeding.

The plaintiff’s request for lump sum costs of $9,000, is entirely reasonable. [ 21 ] The plaintiff shall also have prejudgment interest at a rate of 5% per annum (as per Rule 70.07) for a total of $8,805.09, and $1,617.68 for reasonable disbursements. Conclusion [ 22 ] Based on the above, the plaintiff is entitled to costs, disbursements, and prejudgment interest as follows: Costs $9,000.00 Disbursements 1,617.88 Prejudgment interest 8,805.09 TOTAL $19,422.97 I would ask plaintiff’s counsel to prepare the order.

Arnold, J.