Keleher v Nova Scotia (Attorney General), 2020 NSSC 259

SUPREME COURT OF Nova Scotia Citation: Keleher v Nova Scotia (Attorney General) , 2020 NSSC 259 Date: 2020-10-05 Docket: Bwt. No. 458265 Registry: Bridgewater Between: Patrick Keleher Plaintiff -and- Attorney General of Nova Scotia Defendant -and- Nova Scotia Crown Prosecutor Herman Felderhof Defendant -and- The Honourable Judge Anne E. Crawford Defendant -and- Attorney General of Canada Defendant -and- Royal Canadian Mounted Police, Bridgewater, Nova Scotia Detachment Constable Shelley Marriott Defendant Judge: The Honourable Justice John A.

Keith Heard: June 14, 2019 Counsel: Patrick Keleher, self-represented Plaintiff (Respondents to the motions) Duane Eddy, counsel for the Defendant Attorney General of Nova Scotia and Herman Felderhof (Applicant to one of the

Summary Judgment Motions) Jan Jensen, counsel for the Attorney General of Canada and for the Defendant Royal Canadian Mounted Police (Shelley Marriott) (Applicant to one of the

Summary Judgment Motions) Justin Adams, counsel for the Defendant the Honourable Judge Anne E. Crawford (Applicant to one of the

Summary Judgment Motions) By the Court:

By the Court: Background and Issue [ 1 ] In 2004, the Plaintiff was charged and convicted of assault (the “ Original Criminal Proceeding ”). On appeal before Justice Moir ( 2005 NSSC 14 ), the conviction was set aside, and a new trial was ordered. The Crown did not pursue a second trial and, instead, decided to drop the charges. [ 2 ] Eleven years later, in November, 2016, the Plaintiff commenced these civil proceedings against the investigating officer and the Crown prosecutor.

In 2019, the Plaintiff amended his pleadings to name as a defendant the trial judge who presided over the original trial in 2004. [ 3 ] By decision cited as 2019 NSSC 375 , I determined that: 1. The claims against the Defendant Constable Shelley Marriot be struck except for those allegations relevant to the tort of negligent investigation. Constable Marriot (the “ Investigating Officer ”) worked in the Bridgewater detachment of the Royal Canadian Mounted Police as the officer primarily responsible for investigating the certain assault charges brought against the Plaintiff Patrick Keleher.

I also directed that the style of cause shall be amended to remove the reference to the “Royal Canadian Mounted Police, Bridgewater, Nova Scotia Detachment” as it is neither a legal entity nor a proper party to this action; 2. The claims against the Defendants Attorney General of Nova Scotia and Herman Felderhof be struck except for those allegations relevant to the tort of malicious prosecution. Mr. Felderhof (the “ Crown Prosecutor ”) was the Crown lawyer who prosecuted the assault charges brought against the Plaintiff; 3.

The claims against the Defendant Judge Anne Crawford be dismissed. [1] Judge Crawford (the “ Trial Judge ”) was the trial judge who initially found the Plaintiff guilty of assault. Judge Crawford’s decision was subsequently overturned by the Honourable Justice Gerald Moir. 4. I declined to grant the injunctive relief sought by the Trial Judge and the Crown Prosecutor. 5.

Finally, in an Addendum issued as 2020 NSSC 101 , I confirmed that the claims against Judge Crawford were summarily dismissed under Rule 13.04 (Summary judgment on evidence in an action). [ 4 ] I invited written submissions as to costs if the parties could not agree. The parties could not agree. This is my decision on costs.

The Investigating Officer and the Crown Prosecutor [ 5 ] Counsel for the Investigating Officer states that it was the successful party but does not seek costs. [ 6 ] Counsel for the Crown Prosecutor seeks costs under the Tariff in the amount of $250.00 in the cause because the alleged causes of action were deemed absolutely unsustainable except for one: the tort of malicious prosecution. [ 7 ] The Plaintiff contends that he was the successful party because he “preserved the right to proceed on the two most important torts” (negligent investigation and malicious prosecution).

As such, the Plaintiff seeks costs in the amount of $6,976.00. The Plaintiff does not provide a precise breakdown but states that this amount generally reflects his time and disbursements. The Plaintiff describes this amount as reasonable in the circumstances. [ 8 ] In my view, the Investigating Officer and Crown Prosecutor were predominantly successful in their respective motions. While the Plaintiff seeks to emphasize the importance of the two torts which survive

summary judgment on the pleadings, the Plaintiff’s pleadings evolved over time to reveal an increasing interest in claims which were both serious and clearly unsustainable. The motions brought by the Investigating Officer and Crown Prosecutor served to cull those allegations and distill the pleadings to those claims which were not doomed to fail. [ 9 ] That said, the Investigating Officer does not seek costs of the motion so, for that reason, no costs will be ordered in respect of the Investigating Officer’s motion. [ 10 ] I agree with the Crown Prosecutor’s submissions as to quantum.

Given the circumstances, $250.00 in costs is appropriate. Those amounts shall be payable forthwith. The Trial Judge [ 11 ] The Trial Judge was entirely successful in her motions. Counsel for the Trial Judge seeks lump sum costs in the range of $8,000.00 - $10,000.00. [ 12 ] The Plaintiff concedes that the Trial Judge was successful in her motion to summarily dismiss the claims on the pleadings. He also acknowledges that I may consider reasonable costs payable by the Plaintiff to the Trial Judge. [ 13 ] Costs normally determined under the Tariffs attached to Rule 77.08.

As Justice Fichaud noted at paragraph 17 of Armoyan v Armoyan , 2013 NSCA 136 (“ Armoyan ”), the Tariffs offer predictability and they include a discretion which allows the hearing judge to

make constructive adjustments which ensure that the cost award suits the circumstances of a particular case. Thus, cost awards under theTariff have the benefit of being predictable, adaptable, and principled. [14] At the same time, Justice Fichaud recognized that exceptions arise where the rigid application of the Tariff fails to achieve afair and just result. Those exceptions include cases where the assumptions embedded within the Tariffs become overtaken by the uniquecircumstances of a particular case.

At paragraph 18 of Armoyan, Justice Fichaud offered several examples including: Cases where the particular numerical inputs need to engage the Tariff (e.g. an “amount involved”) are either cannot be easily calculatedor do not exist. In those cases, any attempt to artificially calculate an “amount involved” becomes forced and exceedingly subjective; or The Tariff is based upon normal expectations in terms of the underlying costs. There will be unconventional or atypical cases which donot follow the norm.

The underlying effort and expense associated with some cases may be well beyond (or fall well below) theassumptions embedded in the Tariff; [15] However, as Justice Fichaud observed, the Court should not routinely abandon the Tariff. There must be a reason to departfrom the Tariff (at para 15 of Armoyan) [16] In my view, a lump sum cost award is required in this case because: 1. The Plaintiff refused a reasonable settlement proposal which would have spared all parties the time and expense associatedwith this motion for

summary judgment. This proceeding was commenced by Notice of Action issued November 23, 2016. TheInvestigating Officer and Crown Prosecutor were named as defendants. The Trial Judge was not. On February 6, 2019 and in thecontext of threatened motions for

summary judgment, the plaintiff expanded his allegations; and he amended the Statement of Claimnaming the Trial Judge as a Defendant. As against the Trial Judge, he alleged malicious prosecution abuse of process light of duty ofcare lack of fiduciary duty of care and conspiracy. The Trial Judge only discovered she was being drawn into this proceeding after thePlaintiff had already filed the amended pleading. She had no advance warning. Nevertheless, by letter dated January 21, 2019 and priorto the amendment being formalized, counsel for the Trial Judge wrote to the Plaintiff in an effort to head off the claim.

Counsel for theTrial Judge stated that the “claims contained therein are without merit and unsustainable unlawfully because judges are immune fromcivil liability in relation to the performance of their duties.” Counsel for the Trial Judge went further and helpfully provided the Plaintiffwith Justice Chipman’s decision in Cormier v Nova Scotia, 2015 NSSC 352, in support of that conclusion. Counsel for the Trial Judgeconcluded with the request that the Plaintiff “desist from any effort to name Judge Crawford as a defendant in the above-notedproceeding”.

In a subsequent email exchange on January 25, 2019, counsel for the Trial Judge repeated his request that if the Plaintiffwas prepared to reconsider his position and abandoned any claims against the Trial Judge, the matter would be resolved on a withoutcosts basis. However, if the Plaintiff persisted, counsel for the Trial Judge would recommend enhanced costs well above the tariffamounts for having to prepare and argue a dismissal motion. The Plaintiff persisted and rejected the offer; 2.

After rejecting a reasonable settlement offer, the Plaintiff made matters worse by expanding his claims against the TrialJudge. On June 10, 2019, he added bald allegations of fraud and violations of the Charter of Canadian Rights and Freedoms,

Part I ofthe Constitution Act, 1982, but failed to add any new material facts in support of these very serious allegations. Despite the requirements,the Plaintiff failed to provide full (or any) particulars regarding the allegation of fraud. Casting the pleadings in as generous a light aspossible, the Plaintiff said that the Trial Judge and Crown Prosecutor were somehow motivated by a shared desire to convict the Plaintiffat all costs. The Plaintiff offered no new facts in support of his expanded claims.

Despite the seriousness of what was now beingalleged, the Plaintiff rested on whatever might be gleaned from the allegations contained in the existing pleadings; 3. The allegations against the Trial Judge were extremely serious and were without merit. By way of example: (

a) The Plaintiff alleged that the Trial Judge and Crown Prosecutor were engaged in a conspiracy to secure a conviction at allcosts. However, the Plaintiff did not actually allege an agreement or plead material facts in support of an agreement between the TrialJudge and the Crown Prosecutor. At most, the Plaintiff alleged actions that, he said, were motivated by a desire to convict. Beyond thatand at most, the claim was based on innuendo and the unsupported (and unsupportable) power of suggestion. Ultimately and evensetting aside the principle of judicial immunity, the Plaintiff failed to plead material facts sufficient to sustain the claim of conspiracy;and (

b) Similarly, the Plaintiff alleged fraud against the Trial Judge. Yet, he again failed to clarify any material facts in support of theclaim let alone provide “full particulars” of the alleged fraud as required under Rule 38.03(3). [17] Unfounded allegations of fraud and meritless claims of dishonest, quasi-criminal conduct will attract serious cost consequencesand, in rare and egregious circumstances, result in an award of solicitor and client costs (See: Rule 77, Coughlan et al. v.

WestminerCanada Limited, et al (1994), (NS CA), 127 N.S.R. (2d) 241 and Thirteen Rivers Ltd. v. 3285548 Nova Scotia Ltd.,2016 NSSC 232). In this case, the Trial Judge does not seek solicitor and client costs but, in my view, the harsh and baseless allegationsstubbornly pursued by the Plaintiff justify a lump sum award. [18] As to quantum, a lump sum award of $8,500.00, all inclusive, is reasonable and appropriate in the circumstances.

It representsa substantial contribution towards the Trial Judge’s costs and fairly reflects the very serious nature of the allegations unnecessarily madeagainst the Trial Judge personally in her capacity as a judicial officer. This award also recognizes the consequences associated with thePlaintiff’s misguided strategic decisions including: 1. Rejecting an early and reasonable request to withdraw the claims and avoid litigation; 2.

Then, needlessly intensifying the conflagration with even more inflammatory allegations including fraud. [19] Finally, the Plaintiff sought costs in the amount of $6,976.00 against the Crown Prosecutor and the Investigating Officer. ThePlaintiff described this figure as reasonable in the circumstances. As indicated above, the Plaintiff is not entitled to costs in thecircumstances. Nevertheless and while not determinative, it bears noting that the Plaintiff’s own proposed quantum compares

favourably with a lump sum figure in the amount of $8,500.00 payable to the Trial Judge – particularly given that the Trial was entirely successful and was confronting serious allegations. [ 20 ] Given that my decision ended the entire proceeding against the Trial Judge, these amounts are payable forthwith. Keith, J. [1] Judge Crawford sought to summarily dismiss the claims against her under Rule 13.04 and also as an abuse of process. Given my findings under Rule 13.04, it was unnecessary to also dismiss the claims as an abuse of process.

That said, I observed at paragraph 6 of my Addendum ( 2020 NSSC 101 ) that the claims made against Judge Crawford were unwarranted and egregious; and that, were it necessary to do so, I would have concluded that the claims mad against Judge Crawford constituted an abuse of process .