Goulden v. Fownes, 2021 NSSC 301

SUPREME COURT OF Nova Scotia Citation: Goulden v. Fownes , 2021 NSSC 301 Date: 20211022 Docket: Hfx , No. 496340 Registry: Halifax Between: Allen C. Fownes and Fownes Law Offices Inc. Applicants v. Michael Goulden Respondent Decision on Costs Judge: The Honourable Justice Christa M. Brothers Written Submissions: September 29, 2021 Counsel: Richard Bureau, for the Applicants J. Paul Niefer, for the Defendant By the Court: [ 1 ] This matter came before me in Special Chambers and was heard in a half day. The Applicants were seeking an extension to file an appeal from the taxation of a legal account.

I denied the application with reasons in Goulden v. Fownes, 2021 NSSC 261 . I advised the parties if they could not reach an agreement on costs, I would receive written submissions. The parties have provided those submissions. [ 2 ] The history of the matter is sufficiently set forth in my earlier decision, Goulden, supra and I will not reiterate the complete factual matrix here. [ 3 ] Suffice it to say, the Respondent was successful in defending the motion. I declined to exercise my discretion to extend the time for the Applicants to file an appeal.

Parties’ Positions [ 4 ] The Respondent is seeking enhanced costs in the form of a lump sum, or, in the alternative, an increase to the tariff amount. The Respondent argues that there has been needless and lengthy delay in this case deserving censure by the Court. The Respondent argues that lawyers must recognize that they cannot act with impunity, dragging their heels without regard to the rights of their former clients. The Respondent further submits that this factor takes on added significance in the context of a taxation of costs.

The Respondent argues the Applicants have delayed throughout this proceeding and had no reasonable basis for advancing the motion. In the circumstances, the Respondent says that Tariff C cannot do justice between the parties and that a lump sum in the amount of $5,000.00 is appropriate. [ 5 ] The Applicants argue that the Tariff is the appropriate measure of costs. The usual disposition of costs on a contested two- hour motion is $750.00 to $1,000.00 pursuant to Tariff C.

The Applicants agree that the motion disposed of the proceeding, but say the motion was not an unusual one, and they point out that there was no cross-examination of any witness. [ 6 ] The Applicants say there were no steps taken improperly, abusively, or unnecessarily; no steps taken due to a party unreasonably withholding consent; and, no failure to admit something that should have been admitted. They concede that this was a complex matter given the sparse legal authorities. Issue [ 7 ] What award of costs should be granted to the Respondents?

Law and Analysis [ 8 ] The general rule is that costs are awarded to the successful party in the amount provided by the tariffs ( 3021386 Nova Scotia Limited v. Municipality of the District of Barrington , 2019 NSSC 337 , at para 7 ). Civil Procedure Rule 77.02 describes the judge’s general discretion over party and party costs:

(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. [ 9 ] In this case, the starting point is Tariff C, where the range for a hearing longer than one hour but less than half a day is $750.00 to $1,000.00. Tariff C states: 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.

(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.) 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 $1,000 - $2,000 1 day or more $2,000 per full day [ 10 ] A judge has discretion, as set forth in Rule 77.07, to increase or decrease the tariff amounts. By way of Rule 77.08, a judge also has discretion to depart from the tariff and order a lump sum.

Ultimately, costs are properly in the discretion of the presiding judge, who “may, at any time, make any order about costs as the judge is satisfied will do justice between the parties” (Rule 77.02(1)). In Henneberry v Compton , 2014 NSSC 412 , the Honourable Justice Wright wrote: 22 What the court must always bear in mind in making a costs award is that it should afford substantial contribution towards the successful party's reasonable fees and expenses in presenting or defending the proceeding, without amounting to a complete indemnity.

It is because of that principle that judges have discretion under Civil Procedure Rule 77 to add an amount to, or subtract from, tariff costs or to make an award of lump sum costs instead of tariff costs. [ 11 ] In 3021386 Nova Scotia Limited , supra , the following was stated in reference to Tariff C: 10 Tariff C acknowledges the discretion to depart from the Tariffs when necessary. In particular, Tariff C states: 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. 11 In addition, a multiplier may be added to those amounts where the motion is determinative of the entire matter: 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 inferiortribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or permanent injunction.) [12] The following principles for awarding costs were reviewed by the Honourable Justice Bodurtha in Raymond v. HalifaxRegional Municipality, 2021 NSSC 138: 15 In Grue v. McLellan, 2018 NSSC 151, Justice Hunt summarized the principles in awarding costs as described in Armoyan v.Armoyan, 2013 NSCA 136, at para. 6: 6 In Armoyan v. Armoyan, 2013 NSCA 136 (N.S.

C.A.), the Nova Scotia Court of Appeal provided direction with respect to theprinciples to be considered when determining costs. Specifically, Justice Fichaud stated: 1. The court's overall mandate is to do "justice between the parties": para. 10; 2. Unless otherwise ordered, costs are quantified according to the tariffs; however, the court has discretion to raise or lower the tariffcosts applying factors such as those listed in Rule 77.07(2).

These factors include an unaccepted written settlement offer, whether theoffer was made formally under Rule 10, and the parties' conduct that affected the speed or expense of the proceeding: paras. 12 and 13. 3. The Rule permits the court to award lump sum costs and depart from tariff costs in specified circumstances. Tariffs are the norm andthere must be a reason to consider a lump sum: paras. 14-15 4. The basic principle is that a costs award should afford a substantial contribution to, but not amount to a complete indemnity to theparty's reasonable fees and expenses: para. 16 5.

The tariffs deliver the benefit of predictability by limiting the use of subjective discretion: para. 17 6. Some cases bear no resemblance to the tariffs' assumptions. For example, a proceeding begun nominally as a chambers motion,signaling Tariff C, may assume trial functions; a case may have "no amount involved" with other important issues at stake, the case mayassume a complexity with a corresponding work load, that is far disproportionate to the court time by which costs are assessed under thetariffs, etc.: paras. 17 and 18; and 7.

When the subjectivity of applying the tariffs exceeds a critical level, the tariffs may be more distracting than useful. In such cases, it ismore realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum which should turnon the objective criteria that are accepted by the Rules or case law: para. 18. 16 A costs award should represent "a substantial contribution toward a party's reasonable legal fees and expenses but should notamount to complete indemnity.": Lyle v.

Myer, 2019 NSSC 387, at para. 23. 17 In determining what amounts to a "substantial contribution" towards a party's costs, the Nova Scotia Court of Appeal suggests thatthis means something more than fifty per cent and less than one hundred per cent of those costs: Williamson v. Williamson, 1998 NSCA195, at para. 25. [13] When assessing costs, I start from the premise that the Tariffs govern the appropriate amounts to be awarded. In consideringthe matter, I follow the direction set forth by our Court of Appeal in Armoyan, supra. [14] First, while the affidavit of Mr.

Neifer references a written offer to settle costs at $3,500.00, there is no attached letter or email. [15] Second, the case law is clear that chambers matters will all involve a level of complexity. The case law also confirms that anaward pursuant to the Tariffs is the norm. I also acknowledge the comments made by Goodfellow, J. in Armour Group Limited v.Halifax Regional Municipality, 2008 NSSC 123: [23] The speed of escalation of legal fees is not one that the court can or should try and keep pace with. Solicitors and clients are inthe market place and set their own contractual fee and service conditions.

The court through its establishing of Tariffs is meant toprovide a reasonable level of recovery of party and party costs. It should be remembered that party and party costs are not legal fees butrather the property of the party. See Roose v. Hollett et al. (1996), (NS CA), 147 N.S.R. (2d) 295 (C.A.).

In the vastmajority of situations recently I find that the requests for increased costs in chamber’s applications are tantamount to a request for a highportion of costs on a solicitor and client basis and the law is very clear as to what is required before a court ought to exercise its discretionin awarding solicitor and client costs.

The court should not take the position of approving of the escalation of legal fees and shouldadhere in almost every case to the new Tariffs which are meant to provide a high level of certainty to litigants as to the degree ofrecovery they can reasonably anticipate should they be the recipient of an award of costs or as to the costs the party may be called to payif unsuccessful. [16] I do not find any basis for a lump sum award on the facts of this matter.

However, there was an added complexity given theunderlying factual matrix and the dearth of legal authorities, requiring the parties to undertake additional research to provide someguidance on

interpretation. Furthermore, this decision brought the proceeding to an end. [17] A costs award should represent a “substantial contribution toward a party’s reasonable legal fees and expenses but should notamount to complete indemnity”. Here, the Affidavit of Mr. Neifer states:

4. I agreed to represent Michael Goulden on this matter for a reduced, flat rate of $5,800. 5. I attach hereto, as Exhibit "A", Invoice #443, in the total amount of $5,800, for the period from May 11, 2021 to September 7, 2021. The legal fees on this invoice related to the Applicants' motion for an extension of time to file an appeal, except for the Jack MacDonald ("JAFMD") entries. I discounted the legal fees by 6,432.64, leaving $4,820.36 in fees. Disbursements totalled 5223.12. 6.

I also attach hereto, as Exhibit "B", Invoice #294, in the amount of $4,600, for the period from September 2, 2020 to May 10, 2021, which includes my services with respect to the Applicants' submissions to the Bridgewater Prothonotary on the filing of the Notice of Appeal (categorized as lawyer "JPN"). I spent 4.7 hours on that issue, at a rate of $200/hr, for a total amount of $940 in legal fees. [ 18 ] Awarding $750.00 - $1,000.00 would not do justice to the parties in the circumstances of this more complex matter requiring additional effort and utilizing a lengthy amount of time by counsel.

I am not prepared to order a lump sum; however, given the motion was determinative of the entire matter as the respondent acknowledges, I do consider this to be an appropriate matter in which to multiply the tariff amount by a factor. I reach this conclusion given the complexity, lack of case authorities requiring the parties to resort to first principles, the obvious importance of this matter to the parties and the amount of effort by counsel in preparing for this matter.

Conclusion [ 19 ] In all of the circumstances, I award costs in the amount of $1,000.00 multiplied by two, for a total of $2,000.00, plus the proven disbursements of $223.12, which represent expenses charged at a reasonable rate. Brothers, J.