Martell-Norman v. Brown, 2021 NSSC 321

SUPREME COURT OF Nova Scotia Citation: Martell-Norman v. Brown , 2021 NSSC 321 Date: 20211116 Docket: Annapolis Royal , No. 449419 Registry: Annapolis Royal Between: Timothy Martell-Norman & Cheryl Norman-Martell Plaintiffs v. Ronald Elwin Brown Defendant Judge: The Honourable Justice Pierre L. Muise Final Written Submissions: June 21, 2021 Counsel: Jonathan G. Cuming, for the Plaintiffs W.

Bruce Gillis, Q.C., for the Defendant COSTS DECISION [ 1 ] This is a decision on costs following a cancelled settlement conference. [ 2 ] During the date assignment conference held April 9, 2021, both parties requested a settlement conference. It was scheduled to be held on June 24, 2021. [ 3 ] On June 10, 2021, the Plaintiffs filed a six-page settlement conference brief with attached evidence and authority in support. It outlined the factual background, the issues and their position. [ 4 ] On the same day, the Defendant filed a one-page brief, with no supporting materials. It provided an eight-line

summary of the factual background and stated: “The pleadings make these positions very clear and while we have a Settlement Conference scheduled, the positions of the parties are so contradictory that it is questionable whether anything much can be accomplished.” [ 5 ] Given that comment, I requested the Plaintiffs’ input on the chances of success at a settlement conference and noted that it would be a waste of judicial resources if it was unlikely to be fruitful.

The Plaintiffs responded that the Defendant’s attitude towards the chances of settlement was “unexpected and disappointing” and that “the cancellation of the conference was necessitated by the defendant’s late change of heart and resulting failure to meet the requirements of Rule 10.12(3)”. [ 6 ] I cancelled the settlement conference. [ 7 ] The Plaintiffs requested costs of $1250, payable forthwith, as a substantial contribution towards the $2300 in legal fees, inclusive of HST, they unnecessarily incurred in preparing the settlement conference submissions.

In support, they relied upon Civil Procedure Rules 10.12 (3) and (4), as well as 77.09 (1)(

c) and (2), and on Parkwoodland Management Ltd. v. MacDonald , 2009 NSSC 168 . [ 8 ] The Defendants objected to the request for costs, and responded that “it was not until [they] received Mr. Cuming’s Pre- settlement submissions that it became abundantly apparent that there was really no middle ground that might be reached by the parties at a settlement conference”. [ 9 ] The Plaintiffs replied with attached emails showing that Mr. Gillis sent the Defendant’s settlement conference submissions to the Court and Mr.

Cuming, at 11:08:42 AM on June 10, which was over four hours before the Plaintiffs sent theirs to the Court and Mr. Gillis, at 3:11:44 PM on the same day. [ 10 ] Therefore, the Defendants “change of heart” regarding the utility of a settlement conference could not have been based on the Plaintiffs’ submissions. [ 11 ] Further, as highlighted by the Plaintiffs. The Defendant’s submissions state that it is the pleadings that make it clear that the respective positions are too contradictory. They do not mention the Plaintiffs’ submissions. The Defendant had the Plaintiffs’ Notice of

Action and Statement of Claim before the date assignment conference. The Notice of Action was subsequently amended, but only to change the location noted for trial. [ 12 ] Considering these points. more likely than not, as suggested by the Plaintiffs, the Defendant, at the last minute, abandoned his earlier, at least implied, intention to engage in good-faith negotiations to resolve the dispute. [ 13 ] By then, the Plaintiffs had already unnecessarily expended legal resources on preparing submissions. [ 14 ] CPR 10.12 (3) and (4) state, among other things:

(3) A party who participates in a settlement conference must do each of the following: (

a) submit a brief, book of authorities, and book of evidence on time; (

b) prepare adequately for the conference; ….

(4) A judge may order a party who participates in a settlement conference and does not comply with Rule 10.12(3) and, as a result, causes the settlement conference to be cancelled, to indemnify another party for the expenses of the conference. [ 15 ] CPR 77.09 (1)(c), (2) and (3) state:

(1) This Rule 77.09 applies to an indemnification under any of the following Rules, or a similar Rule: … (

c) Rules 10.12(4) and (5), of Rule 10 - Settlement; …

(2) A judge may order indemnification for all of the following amounts under a Rule to which this Rule 77.09 applies: (

a) a substantial contribution towards the cost of necessary services of counsel, or a fair payment for the work of a person who acts on their own; (

b) necessary and reasonable out of pocket expenses or disbursements; (

c) fair compensation for a harm or loss referred to in the applicable Rule.

(3) The indemnification is payable when the order is made, unless the order provides otherwise. [ 16 ] The Court in Parkwoodland ordered the Respondents, in an application in court, to pay $700 in costs following cancellation of a settlement conference that all parties had requested. The settlement conference had been adjourned once. One week before the new date, the Applicant filed its settlement conference brief. The Respondents only provided new available dates for hearing and had not supplied the medical evidence required for the settlement conference.

The Court cancelled the settlement conference because the missing information and submissions made it impossible to assist the parties in attempting to reach a resolution. It did not note how it determined the quantum of costs. [ 17 ] The Court in Perrin v. Perrin , 2020 NSSC 378 , ordered a self-represented party to pay $1,250 in costs forthwith. He had attended the settlement conference, without filing submissions or fulfilling his disclosure obligations, and had not participated in good faith.

The Court did not specify how that quantum was determined. [ 18 ] In the case at hand, the Defendant filed submissions. However, they were hollow. Their only value was in signalling that it was futile to continue with the settlement conference. That saved judicial resources and saved the Plaintiffs the expense of attending the settlement conference. However, they had already unnecessarily expended resources in preparing and filing their brief and supporting materials. [ 19 ] The Defendant did not file evidence or authority. He did not prepare adequately for the settlement conference.

He clearly had no intention of participating in good faith. [ 20 ] In contrast, the Plaintiffs provided a brief, evidence and authority which assisted in identifying and addressing the relevant issues. The brief also provided a detailed breakdown of its offer to settle. Therefore, the Plaintiffs did approach the settlement conference process in a good-faith attempt to settle the matter.

They had no indication the Defendant would fail to do so. [ 21 ] It is the Defendant who caused the settlement conference to be cancelled. [ 22 ] For these reasons, the Plaintiffs are entitled to costs. [ 23 ] The question which remains is what quantum of costs will do justice between the parties. [ 24 ] CPR 77.09 (2) allows me to fix an amount of costs that provides “a substantial contribution towards” the $2,300 in legal fees they incurred to prepare for the settlement conference, which is a reasonable amount for legal fees considering the work provided.

[ 25 ] The Court in Armoyan v. Armoyan , 2013 NSCA 136 , at paragraphs 16 and 37 , indicated that, absent special circumstances, a costs award exceeding 50% of reasonable legal expenses will represent a “substantial contribution” towards them. The acceptable percentage increases with litigation misconduct.

In Armoyan , the Court determined that, because of litigation misconduct, a proper substantial contribution was 66% of the reasonable legal expenses, before the rejected settlement offer, and 80% thereafter. [ 26 ] The misconduct in the case at hand is that the Defendant abandoned any intention to participate in the settlement conference process in good faith and did not alert the Plaintiffs. It is less extreme than the misconduct in Armoyan , but still of significant concern. [ 27 ] It would warrant a contribution amount above 50%, and above the $1,250 requested.

However, some of the work done in preparing the Plaintiffs’ settlement conference brief can be used in preparing the trial brief. It is not all wasted. Some of it can be salvaged and, with additional work, incorporated into a trial brief. Consequently, the amount requested is, in the circumstances, a proper substantial contribution towards wasted legal fees. [ 28 ] For these reasons, I find that requiring the Defendant to pay costs of $1,250 to the Plaintiffs will do justice between the parties. Pursuant to CPR 77.09 (3), it is presumed to be payable forthwith, unless otherwise ordered.

There is no apparent reason to do so. [ 29 ] Consequently, I order the Defendant to forthwith pay costs of $1,250 to the Plaintiffs for having caused the last-minute cancellation of the settlement conference and caused the Plaintiffs to waste legal expenses in preparation for the settlement conference. [ 30 ] I ask Counsel for the Plaintiffs to prepare the order. Pierre L. Muise, J.