Stanley v. Martell and Marchand, 2020 NSSC 395

Supreme Court of Nova Scotia Citation: Stanley v. Martell and Marchand , 2020 NSSC 395 Date: 20200424 Docket: Pt. Hawk No. 489454 Registry: Port Hawkesbury Between: Gina Stanley Applicant v. Councillor Alvin Martell and Warden Brian Marchand Respondents Library Heading Judge: The Honourable Justice Patrick J. Murray Heard: November 7, 2019, in Port Hawkesbury, Nova Scotia Written Decision: April 24, 2020 Subject: Costs

Summary: Respondents sought costs based on the Court’s decision to grant two motions made by them dismissing the Application of Ms. Stanley. Result: Court found that a multiplier of three (3) times the amount of $2,000. (for a full day), as contained in Tariff C, for each Respondent would be a just amount. This amounts to $6,000. in costs for each Respondent of for a total of $12,000., payable by Ms. Stanley within 30 days. In addition, Ms. Stanley shall pay disbursements in the amount of $118.25 Mr. Martell; and in the amount of $57.05 to Mr. Marchand.

Caselaw Thirteen Rivers Ltd. v. 3285548 Nova Scotia Ltd. , 2016 NSSC 232 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Stanley v. Martell and Marchand , 2020 NSSC 395 Date: 20200424 Docket: Pt. Hawk No. 489454 Registry: Port Hawkesbury Between: Gina Stanley Applicant v. Councillor Alvin Martell and Warden Brian Marchand Respondents Cost Decision Judge: The Honourable Justice Patrick J. Murray

Written Decision: April 24, 2020 Counsel: Gina Stanley, self represented Richard Norman for the Respondents By the Court: Introduction [ 1 ] This is a decision on costs resulting from my decision to grant two motions made by the Respondents, Mr. Martell and Mr. Marchand, who are long-time members of council for the Municipality of the County of Richmond. [ 2 ] My ruling dismissed the Application of Gina Stanley, the Applicant. She alleged that Mr. Martell and Mr. Marchand were in breach of the Municipal Conflict of Interest Act of Nova Scotia , ( MCIA ) .

In total there were six (6) complaints, some of which dated back to 2015. [ 3 ] In my decision, I ruled that the intent of the Act was to require timely applications. I also ruled that the 60-day requirement to commence an application had not been complied with. While the period of days in a rule excluded Saturday, Sunday and holidays, the

Interpretation Act of Nova Scotia resulted in the proper calculation being made in calendar days. Principles in Awarding Costs [ 4 ] The Court has discretion in awarding costs. This discretion provides some flexibility but a costs award should be based on the accepted governing principles. In essence, the judge hearing that matter may make any order that will “do justice” between the parties. This is embodied in Rule 77.02. The discretion conferred upon the Court must be exercised judicially. [ 5 ] Several of the common principles include that:

i) costs follow the result, meaning the successful party(

s) will usually be entitled to costs; ii) costs shall be in accordance with the Tariff of costs set down in Rule 77, unless the judge deems otherwise; iii) an award of costs under the Tariff may be increased or reduced based on a number of factors, examples of which are set out in Rule 77.07, i.e. whether there had been an offer for settlement made; iv) if reasonable approaches to determining Tariff cost do not result in a just award the Court may consider making a lump sum award (Rule 77.06);

v) a party and party cost award shall represent a substantial but incomplete indemnity of the successful party’s actual legal costs; vi) in rare and exceptional circumstances, solicitor and client costs may be awarded to discourage or censure conduct of a litigant or in circumstances where the successful party ought not to be put to any expense for costs (Rule 77.03(2)). [ 6 ] In this particular case, the motion(

s) was made in Chambers. In that case, costs would be assessed on in accordance with Tariff C of the Civil Procedure Rule 77 . Tariff C prescribes a range of costs based on the length of the hearing of an application (or a motion). ( Thirteen Rivers Ltd. v. 3285548 Nova Scotia Ltd. , 2016 NSSC 232 ) [ 7 ] A number of the cost principles are incorporated into the Tariff. For example, paragraph 3 and 4 of Tariff C read as follows: 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 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 and conducting the application. [ 8 ] The entire Tariff C is attached hereto as Appendix “A”. Position of the Parties The Applicant [ 9 ] Ms. Stanley advances several arguments in support of her position on costs. First, she submits her

interpretation of the Municipal Conflict of Interests Act was based on “multiple inquiries” concerning the Act and the Civil Procedure Rules . She argued, “I believe it is the responsibility of the Court to indicate this on the application form so that a self-representative is not misled”. Ms. Stanley was referring to the 60 calendar days versus 60 business days. [ 10 ] Secondly, Ms. Stanley takes issue with the Respondents’ position that the motion was complex and important stating, “…my

Application dealing with the conflicts of interest only asked for removal from Council.” Ms. Stanley further stated, “There was no request for money”. She submitted this decreases the importance or risk to the Respondent councillors. [ 11 ] In her submission Ms. Stanley discussed her expectation of what the future would hold for the Respondents in terms of their intention to re-offer, citing reasons that consists strictly of hearsay evidence. I will address this later. [ 12 ] Ms. Stanley concluded her submission stating there are a host of reasons why a cost award against her should be reduced.

Chief among them is that she consulted with three different legal counsel in the process pursuing her application. If she had known she said, that the Court would interpret 60 days as calendar days she would not have pursued this. She said she was confident that “at least some” of the conflicts alleged were solidly based. [ 13 ] It is her position that the Court should make a more reasonable cost award then that being sought by the Respondents. The Respondents [ 14 ] Mr. Martell and Mr. Marchand each seek $8,000. in costs from Ms. Stanley in accordance with Tariff C.

This was a matter of significance to them personally. The motions extended to a full day in length, involving cross-examination of three witnesses. Cost should be at the high end of Tariff C, they submit. [ 15 ] In addition, Ms. Martell and Mr. Marchand are public figures. Their reputations were at stake. They submit, the unproven allegations were damaging to them. For these reasons the matter was highly important to them. They argue a great deal of effort was expended to prepare for these motions. [ 16 ] That said, the Respondents have not provided evidence of the actual cost incurred by them.

This was however a matter, a point of law, that had not been previously dealt with by the Courts in Nova Scotia. [ 17 ] The Respondents say the case of Thirteen Rivers is similar on its facts to the present one. In that case, Justice Robert Wright deemed the sum of $8,000. to be insufficient to constitute a substantial contribution to the successful third parties on a

summary judgment motion. In Thirteen Rivers , Justice Wright had first used a multiplier of 4 for a one-day hearing of the two motions to arrive at $8,000. [ 18 ] In brief, the Respondents say given the complexity, importance, and significant effort in defending the allegations, a multiplier of four (4) pursuant paragraph 4 of Tariff C, is an appropriate measure of costs in this case.

Analysis/Discussion [ 19 ] The Applicant maintains that she relied on conversations with court administration in relation to the time frame under the rules. [ 20 ] Pursuant to Rule 34 a person representing themself is required to sign a personal representation form, PRF. This document confirms the designated address for the self-represented person for delivery of documents. In the form, the person, in this case Gina Stanley, acknowledges receiving a copy of the Civil Procedure Rules and agrees to comply with Rule 34. [ 21 ] Rule 34 permits court staff provide guidance to litigants.

However, that does not include legal advice.

Rule 34.07 states: 34.07 The prothonotary may provide information to a party acting on their own about the Rules and practices of the court. [ 22 ] The PRF for the Nova Scotia Court of Appeal and Nova Scotia Supreme Court contains the following terms and conditions: ___ I am acting on my own behalf in these legal proceedings at this time. ___ I have been advised by NS Court Services staff to seek legal advice from a lawyer who is a practicing member of the Nova Scotia Barristers’ Society so that I can be informed about my rights and obligations in relation to this legal proceeding. ___ I understand that there are risks involved if I do not obtain legal advice or if I represent myself in this legal proceeding. ___ I do not hold NS Court Services staff responsible for the form or content of any of the documentation I have signed, prepared or filed as I am acting on my own behalf and I am responsible for the documentation that I have signed, prepared or filed. ___ I understand that NS Court Services staff cannot provide me with legal advice. ___ I have been provided with a list of legal services, on the third page of this document, which gives me information on some of the ways in which I may be able to obtain legal advice or representation. [ 23 ] In this case, Ms.

Stanley acknowledged each of these terms with her initials being placed by her before each one the form signed on June 25, 2019. [ 24 ] Very clearly, Ms. Stanley acknowledged the risks associated with representing herself and that Nova Scotia court services would not be held responsible. She, on her own behalf, would be responsible for the documentation that she signed, prepared and filed. As she confirmed in writing, she understood Nova Scotia court services staff could not provide her with legal advice. [ 25 ] Regarding Ms.

Stanley's claim that the matter was less important because she sought only removal of the Respondents from Council and not monetary compensation, I have some difficulty with that argument. [ 26 ] In addition, based on her assessment, Ms. Stanley indicated the Respondents would not be on the next Council in any event. This is speculative and not relevant for the purposes of this cost submission.

[ 27 ] This cost decision really turns on paragraph 4 of tariff C. I find that matter was of some complexity as it is an issue that had not before been judicially considered. In terms of both complexity and importance, the tension and anxiety involved in defending and responding to these allegations is easily understood. [ 28 ] Having consulted with three different legal counsel, the Applicant would have an appreciation of the difficulty with predicting the outcome of these matters, that involve the

interpretation of limitation periods in the MCIA . [ 29 ] I have reviewed and considered the case of Thirteen Rivers, relied upon by the Respondents. I find it is relevant in certain respects. The Court in Thirteen Rivers concluded there was no evidence of any material fact that needed to be determined at trial and granted

summary judgement. [ 30 ] In addition, unlike Thirteen Rivers , there is no evidence here of the actual legal costs incurred by the Respondents in terms of quantum. It is therefore more difficult to assess whether a cost award will be a substantial contribution to the Respondents’ actual legal costs. [ 31 ] That said, there are similarities which can be drawn between Thirteen Rivers and the present case. First, the length of these motions were roughly one day. I find here when the post hearing submissions are taken into account, determining that the hearing lasted one full day is reasonable.

With submissions it was arguably longer than that. [ 32 ] Secondly, in both cases there were two motions heard at the same time and each case resulted in the main proceeding being dismissed. Both motions were granted with costs, thus dismissing the proceedings. [ 33 ] Turning back to Tariff C, this matter was clearly very important to the Respondents and I would suggest also to the Applicants.

Although there was no decision on the merits of the application, the Respondents were 100% successful on the motions, which resulted in having the application dismissed in its entirety. [ 34 ] In terms of complexity, the motions were of sufficient complexity that the outcome could not have been known by the parties with or without representation. As stated in my decision on the motion, litigants must be aware of the consequences of litigation and the fact that the successful party will likely be awarded costs.

Self-represented litigants are not immune from these consequences. [ 35 ] Lastly, with respect to the amount of effort involved in preparing for and conducting the application, although the Respondents’ fees have not been submitted, the Court has been able to obtain a sense of the preparation from the documentation submitted. The Court is satisfied the affidavits, briefs and legal authorities were prepared and in a meticulous fashion. This involved sorting through dates, timelines, Facebook posts and messages as well as legal research.

Conclusion [ 36 ] Having weighed and considered the circumstances of the Applicant and Respondents, I am unable to conclude that a multiplier of four (4) is the appropriate cost award. I am satisfied that paragraphs 4(

a) and 4(

b) of Tariff C are clearly factors that favour a multiplier of some amount. Without more evidence of the actual legal costs of the Respondents however, I have not been convinced the maximum multiplier of four (4) is warranted. [ 37 ] In all of the circumstances, I am satisfied that a multiplier of three (3) times the amount of $2,000. (for a full day), as contained in Tariff C, for each Respondent would be a just amount. This amounts to $6,000. in costs for each of Mr. Martell and Mr. Marchand, for a total of $12,000., payable by Ms. Stanley within 30 days. [ 38 ] In addition, Ms.

Stanley shall pay disbursements in the amount of $118.25 Mr. Martell; and in the amount of $57.05 to Mr. Marchand. [ 39 ] This concludes my cost decision. [ 40 ] Order accordingly. Murray, J. Appendix “A” 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:

(1) Based on this Tariff C costs shall be assessed by the Judge presiding in Chambers at the time an order is made following an application heard in Chambers.

Length of Hearing of Application Range of Costs Less than 1 hour $250 - $500 More than 1 hour but less than ½ day $750 - $1,000 More than ½ day but less than 1 day $1000 - $2000 1 day or more $2000 per full day

(2) Unless otherwise ordered, the costs assessed following an application shall be in the cause and either added to or subtracted from the costs calculated under Tariff A.

(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 and conducting the application. (such applications might include, but are not limited to, successful applications for

Summary Judgment, judicial review of an inferior tribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction.)