Lin v. Song, 2023 NSSC 117

SUPREME COURT OF Nova Scotia Citation: Lin v. Song , 2023 NSSC 117 Date: 20230412 Docket: Hfx , No. 520469 Registry: Halifax Between: Haiyan Lin -and- 3340435 Nova Scotia Limited Applicants v. Mingming Song -and- Eman Beauty Inc. Respondents Costs Decision Judge: The Honourable Justice Christa M. Brothers Written Submissions: March 22, April 6 and 11, 2023 Counsel: Michael Blades, for the Applicants Ziad R. Lawen, for the Respondents By the Court: [ 1 ] This decision addresses the amount of costs that should follow the respondents’ successful adjournment motion. The motion was heard and granted on March 14, 2023.

The chambers application was originally scheduled for a hearing on March 15, 2023. It was not until March 10, 2023, just two clear days before the hearing, that the respondents first advised that they were seeking an adjournment. The request was based on their failure to meet court filing deadlines and their decision to retain new counsel. Background [ 2 ] The applicants initially advanced an application in court to address a dispute involving the shared ownership of a condominium.

After time elapsed, the applicants decided to discontinue the application in court and commence an application in chambers to advance their alleged interests in the real property in an expedient way. [ 3 ] The applicants' notice of application seeks: The Applicants are applying to the Court for:

a) an order winding up 3340435 Nova Scotia Limited pursuant to the provisions of the Companies Winding Up Act , RSNS 1989, c. 82 ;

b) an order pursuant to Section 6(1) of the Companies Winding Up Act granting the Respondent Ming Ming Song the option to purchase the Applicant Haiyan Lin’s shares in 3340435 Nova Scotia Limited on such terms and conditions as This Honourable Court thinks fit; and

c) an Order, in connection with the winding up of 3340435 Nova Scotia, directing the Respondents to pay damages to the Applicant 3340435 Nova Scotia Limited for trespass, unpaid rent, and property damage with respect to 3340435 Nova Scotia Limited’s real

property asset; and

d) an Order for injunctive relief restraining the Respondent Eman Beauty Inc. and any individual acting in his or her capacity as an agent, employee or representative of Eman Beauty Inc. from entering upon real property owned by the Applicant 3340435 Nova Scotia Limited. [ 4 ] The applicants claim the respondents have breached their obligation to pay monthly rent to 3340435 Nova Scotia Limited, the Landlord Corp, which holds the real property.

The applicant, Haiyan Lin Lin, is a director and a 50% shareholder in the Landlord Corp. [ 5 ] The respondents have allegedly refused to vacate the premises, have continued to run a business in the condo, and have paid no monthly rent since June 2022. [ 6 ] There are significant issues related to the real property to be addressed in the application in chambers. [ 7 ] After the applicants filed a notice of application in chambers, and despite the clear filing deadlines, the respondents failed to file a timely notice of contest. The applicant filed a motion for

summary disposition pursuant to CPR 5.23 on February 9, 2023. The respondents then filed their notice of contest late, on February 17, 2023. Consequently, the applicants were forced to withdraw their motion. The respondents agreed to pay $250 in costs associated with the preparation of the

summary disposition motion initiated by the late filing of the respondents’ notice of contest. [ 8 ] The respondents failed to comply with clear filing deadlines for affidavits and briefs in relation to the application in chambers, which was scheduled for March 15, 2023. The applicants filed affidavits and a pre-hearing brief on March 7, 2023, on the basis that the application was not contested. [ 9 ] Former legal counsel for the respondents, Mr. Bland, was released as solicitor of record on or about March 8, 2023. At that time, the applicants were advised that the respondents would self-represent.

On March 9, the respondents’ new counsel, Mr. Lawen, advised of his retainer. On March 10, the respondents sent a letter to the court seeking an adjournment of the March 15 hearing. This letter was not copied to applicants’ counsel. The letter stated as follows: I have been retained as of March 9, 2023, to represent the Respondents, Song, in this matter. Song previously retained counsel, however, upon arrival of them to my office, their solicitor-client relationship had fallen beyond repair and they had been seeking new counsel.

They came to me having missed their filing deadlines and with the hearing scheduled for March 15 th , 2023, I am solemnly requesting an adjournment and a new hearing date as to allow me time to properly prepare the clients, file the correct documentation, and provide just representation to Song. We recognize this may incur a cost, which is justified if an adjournment be granted. We hope the courts will sympathize with this matter, these parties, and grant the adjournment despite the tardiness. Yours truly, Ziad R.

Lawen [Emphasis added] [ 10 ] The court provided the applicants with a copy of the adjournment request. By agreement of counsel, the adjournment motion went ahead via a telephone appearance on March 14, 2023. After considering the applicable Rules and weighing the prejudice to both parties, the adjournment was granted, albeit with reservations. Costs were to be argued by way of written submissions. Evidence [ 11 ] Counsel for the applicants, Mr. Blades, filed a solicitor’s affidavit sworn on March 22, 2023.

The affidavit details the legal fees incurred for the purpose of preparing for the application in chambers originally scheduled for March 15: 9.

To the best of my knowledge and belief, the following summarizes the details of legal fees incurred by the Applicants for the purpose of preparing for the hearing of this Application in Chambers originally scheduled for March 15, 2023, all prior to receiving notice of an adjournment request by the Respondents: Lawyer Rate Hours Date & Description Total MPB $375.00/hr 0.4 2023-03-01 – Correspond with Court confirming the Respondents’ failure to file affidavit evidence $150.00 + HST Grace Levy (“GL”) $175.00/r 3.1 2023-03-06 – Preparing pre- hearing brief based upon an uncontested Application $42.50 + HST MPB $375.00/hr 1.2 2023-03-06 – Preparing a pre- hearing brief based on an uncontested Application $450.00 + HST GL $175.00/hr 0.4 2023-03-07 – Preparing a pre- hearing brief based upon an uncontested Application $70.00 + HST

MPB $375.00/hr 2.5 2023-03-07 – Preparing and filing pre-hearing brief based upon an uncontested Application $937.50 + HST Total inclusive of HST $2,472.50 [ 12 ] In addition, Mr. Blades advised that the legal fees incurred by the applicants in responding to the adjournment motion were as follows: [11] To the best of my knowledge and belief, the following summarizes the details of legal fees incurred by the Applicants for the purpose of responding to the Respondents’ adjournment motion which was heard March 14, 2023: Lawyer Rate Hours Date & Description Total MPB $375.00/hr 0.6 2023-03-08 – Correspond with O.

Bland and M. Song re: release of O. Bland and intention to self- represent $225.00 + HST GL $175.00/hr 0.2 2023-03-09 – Correspond with new legal counsel Z. Lawen $52.50 + HST MPB $375.00/hr 0.2 2023-03-09 – Correspond with Z. Lawen re: Respondents’ desire to late-file affidavits $75.00 + HST MPB $375.00/hr 1.8 023-03-10 – Numerous correspondences with Court and Z.

Lawen and clients re: adjournment request; prepare and file letter submission on adjournment request $675.00 + HST GL $175.00/hr 1.6 2023-03-13 – Research and analysis re: legal principles governing adjournment request $280.00 + HST MPB $375.00/hr 0.5 2023-03-13 – Multiple correspondences with Court and Z. Lawen re: adjournment motion $187.50 + HST MPB $375.00/hr 4.7 2023-03-14 – Prepare for and attend/argue adjournment motion; prepare draft order following hearing $7,762.50 + HST GL $175.00/hr 2.1 2023-03-14 – Attend adjournment motion $367.50 + HST Total inclusive of HST $4,168.75 [ 13 ] Mr.

Lawen filed a solicitor’s affidavit on this costs application, sworn on March 29, 2023, which contains nothing relevant to costs. Additionally, the respondents submitted an affidavit of Ming Ming (Sylvia) Song, sworn on March 24. Ms. Song places the blame for the late filed affidavits and brief on her former counsel. She also blames him for the late filing of the notice of contest. There is no information before the court detailing any legal advice from Mr. Bland to Ms. Song concerning the need to file affidavits and a pre- hearing brief, nor the deadlines for those materials. Since Mr.

Bland is not a party to the motion, Ms. Song’s affidavit provides a one- sided view of the solicitor-client relationship. The Song affidavit and attachments do, however, provide some support for Ms. Song’s position that Mr. Bland was responsible for the late filing of the notice of contest. An email dated February 22, appended to the affidavit, states: Hi Sylvia, I suggest to agreeing to the $250 in costs to remove the Friday hearing. As I was late filing I’ll subtract that from my bill.

As for the rest, I am not aware of the law they base their claim for costs upon, so without that I suggest we proceed for the moment with the march hearing until they provide us with more. Owen [ 14 ] However, this email only refers to the notice of contest. It also suggests the respondents were considering proceeding “for the moment” with the March hearing, waiting for some further communication from the applicants in relation to a “claim for costs”. [ 15 ] This email raises more questions than it answers in relation to the late filed affidavits and brief which necessitated the adjournment motion.

Clearly, there was a breakdown in the solicitor-client relationship between the respondents and Mr. Bland. I do not have all of the evidence before me and I make no finding concerning who, as between the respondents and their former counsel, is responsible for the late filings. The fact is that Mr. Bland was the respondents' agent at the relevant time. The respondents have not added Mr. Bland as a third party seeking an order that he personally pay the costs of these motions. [ 16 ] It is without dispute that the applicants have been left in an untenable position.

They had every reason to believe that they were attending an uncontested application in chambers and they prepared their materials on that basis. Then, at the proverbial eleventh hour,

the respondents filed a motion to adjourn. The result of granting that motion is that the applicants have wasted their time and effort preparing for what they reasonably believed would be an uncontested application. It was obvious on March 3, 2023, that the parties' settlement discussions were not advancing and that an adjournment might be necessary. An email from Mr. Bland to Ms. Song on March 3 stated as follows: Hi Sylvia, See below from Blades. I can suggest we adjourn the hearing to further sort things out and leave costs off the table for the moment.

Otherwise they’re being quite stubborn about both 1) insisting on costs and 2) running up costs while refusing to stop the court proceedings by adjourning them to continue trying to settle. Owen [ 17 ] It seems that it was not until on or about March 8, 2023, that Mr. Bland and the respondents parted ways. The motion to adjourn was filed two days later. Ms.

Song’s affidavit states: [11] During this visit to Owen’s office, only then did it become clear that the affidavits were not prepared nor filed and that they ought to have been filed by March 1 st , 2023. [12] As such, our solicitor-client relationship had fallen beyond disrepair. Parties' positions [ 18 ] The applicants seek full indemnity of the $4,168.75 in legal fees incurred in relation to responding to the respondents’ adjournment motion.

In addition, the applicants seek full indemnity of $2,472.50 which was incurred for the purposes of preparing and filing a pre-hearing brief on the basis that the application was uncontested. In total, the applicants seek $6,641.25 payable forthwith, in any event of the cause. The applicants state that because of the respondents' failure to comply with multiple filing deadlines, the applicants have wasted time, effort, and monies.

Consequently, the applicants seek indemnification on a solicitor and client basis. [ 19 ] The respondents maintain that their former solicitor’s negligence is the sole reason they failed to file their notice of contest, affidavits, and pre-hearing brief on time, and are seeking an adjournment so close to the application in chambers. However, there is no evidence that Mr. Bland was given notice that his former clients would be taking this position and, as such, the court has no evidence from him.

I am therefore not in a position to make any such finding. [ 20 ] Additionally, the respondents argue that solicitor and client costs are not appropriate because there has not been any reprehensible, scandalous or outrageous conduct on the part of the respondents. Ms. Song’s behavior was ill-advised, and the respondents have admitted as much as they have consented to costs relating to this adjournment”. The respondents maintain that any costs should follow Tariff C and be limited to $750.

In the alternative, if it is determined that Tariff C is inappropriate, then costs should be fixed by taxation as per the CPR 77.16. Issue • What is the appropriate award of costs in relation to responding to the adjournment motion, and the wasted effort preparing for an uncontested hearing? Law and Analysis [ 21 ] In Tri-Mac Holdings Inc. v. Ostrom , 2019 NSSC 44 , Justice Ann E. Smith summarized the applicable principles when determining costs: Costs [2] The general rule is that costs follow the event. That rule is not absolute. There are no reasons why that rule should not apply here.

The real issue is the amount of those costs. [3] The starting point in determining the quantum of costs is the Tariffs of Costs and Fees under Rule 77. Costs on a motion are governed by Tariff C, unless the judge orders otherwise: Rule 77.05(1). A judge has the discretion to add or subtract from the tariff amount: Rule 77.07. Furthermore, a judge “may award lump sum costs instead of tariff costs”: Rule 77.08. [4] The guiding principles in awarding costs were considered by the Nova Scotia Court of Appeal in Armoyan v Armoyan , 2013 NSCA 136 .

Hunt J. recently summarized the Court’s comments from Armoyan in Grue v McLellan , 2018 NSSC 151 , [2018] NSJ No 262: 6 In Armoyan v. Armoyan , 2013 NSCA 136 , the Nova Scotia Court of Appeal provided direction with respect to the principles 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 tariff

costs applying factors such as those listed in Rule 77.07(2). These factors include an unaccepted written settlement offer, whether the offer 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 and there 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 the party'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 may assume a complexity with a corresponding work load, that is far disproportionate to the court time by which costs are assessed under the tariffs, 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 is more realistic to circumvent the tariffs, and channel that discretion directly to the principled calculation of a lump sum which should turn on the objective criteria that are accepted by the Rules or case law: para. 18. [ 22 ] The general rule is that costs are awarded to the successful party in the amount provided by the tariffs. CPR 77.02 confirms the judge’s general discretion over party and party costs: 77.02 General discretion (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. [ 23 ] For costs on a motion, the starting point is typically Tariff C, which sets a range of $750-$1000 for a hearing longer than an hour but less than half a day. Tariff C states: 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.

(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 [ 24 ] A judge has discretion under Rule 77.07 to increase or decrease the tariff amounts. Rule 77.08 permits a judge 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 an

order about costs as the judge is satisfied will do justice between the parties”. Lastly, Rule 77.09 and Rule 23.12 are relevant in thecircumstances of this motion. They state: 77.09 Amount under a Rule about indemnification

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

a) Rules 4.18(4) and 4.21(d), (e), or (f), of Rule 4 - Action; (

b) Rules 5.11(3) and 5.15(c), of Rule 5 - Application; (

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

d) Rule 18.19(3), of Rule 18 - Discovery; (

e) Rule 19.08(2), of Rule 19 - Interrogatories; (

f) Rule 20.06, of Rule 20 - Admission; (

g) Rules 23.09(8) and 23.12(3), of Rule 23 - Chambers Motion; (

h) Rule 39.04(5), of Rule 39 - Affidavit; (

i) Rule 50.14(4), of Rule 50 - Subpoena; (

j) Rules 51.02(3) and 51.03(2), of Rule 51 - Conduct of Trial; (

k) Rule 55.13(5), of Rule 55 - Expert Opinion; (

l) Rule 88.02(d), of Rule 88 - Abuse of Process.

(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 ontheir 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. … 23.12 No further affidavit

(1) A party may only file an affidavit after a deadline in Rule 23.11 with the permission of a judge.

(2) On a motion to permit a late affidavit, the judge must consider all of the following: (

a) the prejudice that would be caused to the party who offers the affidavit, if the motion proceeds without that affidavit; (

b) the prejudice that would be caused to other parties by allowing the affidavit to be filed, including the prejudice caused by anadjournment, if an adjournment would result; (

c) the prejudice caused to the public if motions set by appointment are frequently adjourned when it is too late to make the best use ofthe time of counsel, the judge or court staff.

(3) A judge who allows a late affidavit may order the party filing the affidavit to indemnify any other party for expenses resulting fromthe filing, including expenses resulting from any adjournment. [25] These Rules contemplate indemnification or substantial contribution where there is a request for an adjournment or a requestfor permission to file late affidavits. Solicitor and Client Costs [26] The applicant is seeking solicitor and client costs. CPR 77.03(2) provides for the award of solicitor and client costs. Thethreshold for solicitor and client costs is a high one.

They are resorted to only in rare and exceptional circumstances such as wheremisconduct has occurred in the conduct of or related to the litigation (Brown v. Metropolitan Authority, 1996 NSCA 91 , [1996]N.S.J. No. 146 (N.S.C.A.) and Williamson v. Williams, 1998 NSCA 195, at p. 8) or unproven, unfounded or abandoned claims of fraud,impropriety and dishonesty (Amirault v. Westminer Canada Ltd. (1994), (NS CA), 127 N.S.R. (2d) 241 (N.S.C.A.). Despite quite serious issues being present, the following cases did not attract solicitor and client costs: Campbell v.

Lienaux, (NS SC), 1997 165 N.S.R. (2d) 356 (S.C.); National Bank Financial Ltd. v. Potter, 2005 NSSC 264; and, National Bank FinancialLtd. v. Potter, 2008 NSSC 213) [27] I am concerned about the respondents’ conduct in this matter. There were no affidavits filed on the adjournment motion that

adequately explain why it has been so difficult for them to conduct this litigation in a timely manner according to the Rules. Counsel simply fell on his proverbial sword for his clients' conduct, and it was clear that without an adjournment, the respondents could not possibly mount any defence to the application. There was mention in correspondence of the respondents’ view that their prior counsel has been less than satisfactory. There was mention by current counsel of the respondent’s view that their former counsel had not moved this matter forward with dispatch.

However, the court had no affidavit evidence on the adjournment motion of the difficulties the respondents may have had with prior counsel. I now have the Song affidavit, which contains allegations of poor representation. However, Mr. Bland is not here for a determination on that issue, and it is not relevant to any cost determination presently before the court. What is certain is that the applicants have been moving this matter forward with dispatch while they have been met with silence from the respondents.

No timely notice of contest was filed, no affidavit evidence was filed, and no pre-hearing brief was filed. This is blame-worthy conduct. I do not have any satisfactory evidence before me on which I can conclude that this blameworthy conduct should be attributed to anyone other than the respondents. If the respondents have concerns about their prior legal representation, there are means of recourse available to them, but the issue of solicitor negligence is not before me on this motion. [ 28 ] The respondents rely on Lockerby v.

Lockerby , 2011 NSSC 103 , a decision after trial, for their position that solicitor and client costs should not be awarded against them. In that case, the court did not grant solicitor and client costs despite the following conduct: [32] Ms. Lockerby's disclosure was lacking. Her financial statements were incomplete and out of date. She failed to provide information about her income. Information about her work

schedule was not made available until the trial, despite requests and court orders. Mr. Lockerby asked that I impute income to Ms. Lockerby and she conceded that income could be imputed to her at the level that Mr. Lockerby proposed. [33] Ms. Lockerby's conduct has been vindictive and ill-considered. I have considered it and made my decisions accordingly.

It has not been reprehensible, scandalous or outrageous as would be required to support an award of solicitor and client costs. [ 29 ] I note, however, that the Lockerby decision does not deal with a late adjournment request by a party where the adjournment is necessary to allow the moving party to remedy its own failures. [ 30 ] The applicants rely on two authorities which relate to the issue of costs following a late adjournment request. In Three Ports Fisheries Ltd. v.

Jeffrie , 2013 NSSC 224 , the court awarded throw away costs on a solicitor and client basis following a successful adjournment motion brought a few days before the application in court. [ 31 ] In Caterpillar Inc. v. Secunda Marine Services Ltd ., 2010 NSCA 105 , the court applied the principles expressed in Rule 4.20 and 4.21 in assessing a request for an adjournment made one week before trial. The court held that the proper approach to assessing such an adjournment request was to order that the requesting party indemnify the opposing party for reasonable costs and expenses on a solicitor and client basis.

Once indemnification was taken into consideration, the balancing of factors under the Rules became markedly different and militated in favor of the adjournment.

In Caterpillar, supra , the court ordered indemnification on a solicitor and client basis in relation to both efforts responding to the adjournment request and the wasted and duplicative efforts associated with other steps in the proceeding. [ 32 ] The applicants rely on the following in Caterpillar , supra : [21] Because of the judge’s error in principle in his assessment of the prejudice to Secunda, as have discussed, leave should be granted, the appeal should be allowed and the trial should be adjourned. As a condition of the adjournment and to minimize Secunda’s prejudice, under Rules 4.21(e)and (

f) Caterpillar should, in any event of the cause, indemnify Secunda for Secunda’s reasonable costs, assessed on a solicitor and client basis, related to both (1) the adjournment litigation in the Supreme Court and this court, and (2) any wasted and duplicated effort of preparing twice for the trial, including securing the attendance of witnesses.

Those costs, together with reasonable and necessary disbursements, may be calculated by the trial judge if the parties are unable to agree. [ 33 ] While both cases cited by the applicants involve an application in court and an action, the applicants argue that there is no principled basis to suggest that the reasoning should not apply equally to an application in chambers. I accept the applicants' argument that the lateness of this adjournment request and the prejudice it has caused is concerning.

However, in these particular circumstances I distinguish Caterpillar , supra and Three Ports Fisheries Ltd. , supra from the case before me. The courts, in assessing and balancing factors to be considered on an adjournment motion, found that the balance favouring granting an adjournment only crystallized once an award of solicitor and client costs was factored in as indemnity for the prejudice the unsuccessful party would suffer if an adjournment was granted. In this case, the parties did not raise the issue of costs at the time of the successful motion for the adjournment.

Legal Fees Incurred [ 34 ] When reviewing the details of the legal fees, as reproduced earlier in this decision, I am not convinced that the applicants should be indemnified in relation to the correspondence with the court confirming the respondents’ failure to file affidavit evidence dated March 1, 2023. I do accept that the pre-hearing brief took 4.72 hours to prepare.

Reducing for the cost of the March 1 correspondence, the total is $2,300. [ 35 ] The first three entries in the chart contained at paragraph 11 of the Blades affidavit are in response to the release of legal counsel and correspondence with new counsel. These do not relate specifically to the respondents’ adjournment motion. Consequently, the total entries which relate to the response to the adjournment motion total $3,763.38. From that, I would deduct 2.1 hours ($422.62) for an associate’s attendance at the adjournment motion for training purposes.

This leaves a total of $3,340.76 in fees incurred by the applicants in relation to the adjournment motion. This amount relates to correspondence with the court and Mr. Lawen concerning the adjournment request, preparation of submissions and research concerning legal principles. I accept that these amounts were necessarily incurred for the adjournment motion. [ 36 ] I have reviewed the caselaw relied upon by the respondents. It is clear that for solicitor and client costs to be awarded, there must be a finding that the respondents’ behavior was reprehensible, scandalous or outrageous.

In other words, the respondents’ conduct must be deserving of censure or rebuke. The courts have also stated very clearly, in case after case, that solicitor and client costs are only

awarded in rare and exceptional circumstances. In Lockerby , supra , the court found that despite the opposing party’s failure to comply with disclosure requests and their intentional reluctance to cooperate with the trial, described as “vindictive” “ill-considered”, the standard of reprehensible, scandalous or outrageous conduct necessary for an award for solicitor and client costs had not been met. [ 37 ] I am satisfied that applying Tariff C would absolutely not do justice to the parties in these circumstances.

I acknowledge that the Nova Scotia Court of Appeal has said that applying the Tariffs is the norm, but I find that there is a reason to deviate from them in this case ( Armoyan v. Armoyan , 2013 NSCA 99 ). [ 38 ] The applicants just want their day in court. Despite their significant ongoing efforts, they have not been successful in attaining that day. Responsibility for this failure belongs with the respondents. To order $750 – $1,000 in the face of the respondents’ ongoing failures to meet court deadlines would do no justice. A much higher amount is called for and necessary in the circumstances.

The respondents requested and required an adjournment because they failed to file affidavit evidence to respond to the applicants’ application. Their success on the adjournment motion means they have a second opportunity to marshal evidence to oppose the application. In essence, the respondent’s have been given permission to file late affidavits under Rule 23.12 and the applicants are entitled to costs for that expense resulting from the adjournment. A substantial contribution is necessary.

Rules 72.09 and 23.12 and the necessity of indemnification must guide the award of costs in this particular matter. [ 39 ] The costs incurred by the applicants in preparing for the adjourned hearing of the application in chambers are largely wasted, the applicant’s pre-hearing brief was filed on the basis of an uncontested application. Therefore, on the basis of indemnifying the applicants, I order that $2,000 be paid by the respondents to the applicants for these costs. [ 40 ] As for the adjournment motion, the respondents failed to comply with several court deadlines.

They created a circumstance where they faced attending an application in chambers involving real property rights without any evidence to contest the application. This was a self-created circumstance. If an adjournment was not granted, they would have suffered extreme prejudice and would, in all likelihood, have been unsuccessful in defending the applicant’s claims, given their complete lack of evidence.

However, their failure to comply with court deadlines and failure to marshal evidence was not satisfactorily explained in the affidavit evidence as being attributable to a medical condition or some such other circumstance outside of their control. I very reluctantly granted the adjournment. [ 41 ] The applicants were left in an untenable position of attempting to thwart the adjournment motion a day before the hearing. The applicants have done nothing but fastidiously advance their claims against the respondents. They now have to wait until May 16, 2023, to have this application heard.

Consequently, I have determined that the amount of $3,000.00 should be payable forthwith by the respondents to the applicants for legal fees incurred on the adjournment motion. This is a substantial contribution and an almost complete indemnity which is called for in this case. Conclusion [ 42 ] In total, the respondents shall pay to the applicants the sum of $5,000.00 forthwith, as a substantial indemnity for costs wasted in preparation for the application and expenses related to the adjournment motion. This sum will adequately do justice between the parties in the particular circumstances of this case.

Brothers, J.