Hynes v. Qulliq Energy Corporation, 2014 NUCJ 5

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Hynes v. Qulliq Energy Corporation, 2014 NUCJ 05 Date of Judgment (YMD): 20140130 Docket Number: 08-10-290-CVC Registry: Iqaluit Plaintiff: Amy Hynes -and- Defendant: Qulliq Energy Corporation ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Plaintiff): P. Hunt Counsel (Defendant): R.M. Beamish Location Heard: Iqaluit, Nunavut Date Heard: June 17-19 2013 Matters: Judicature Act, S.N.W.T., 1998.

C. 34 s.52, 53; Rules of the Supreme Court of the Northwest Territories, R.N.W.T. R-010-96, Rules 193,194,196,197,201,206,641, 643, 648 as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 [Nunavut Rules of Court]. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Amended Decision: An amended decision was issued on January, 31 2014; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] In Hynes v Qulliq, 2013 NUCJ 25 , I awarded judgment in favour of the Plaintiff in the amount of $133,812.61 plus costs and prejudgment interest that were to be addressed in written submissions. Those submissions were filed on December 6 and 20th, 2013. [ 2 ] The Plaintiff seeks prejudgment interest in the amount of $15,584.59 and costs of $110,881.12 or alternatively in the amount of $110,053.73.

These costs calculations have a component of solicitor-client costs based on an Offer To Settle, or in the alternative are derived from the enhanced party-party costs approach described in Rennie v Northwest Territories & Nunavut (Workers’ Compensation Board), 2007 NUCJ 22 , Admin LR (4th) 140 [Rennie]. [ 3 ] The Defendant argues the Plaintiff should receive prejudgment interest of $15,198.70 and party-party costs on column 5 of

Schedule A of Rule 648(1) of Nunavut Rules of Court, R.N.W.T. R-010-96, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28 . [Rules]. II. ISSUES [ 4 ] What amount of prejudgment interest should the Plaintiff receive? [ 5 ] How much should the Plaintiff receive for costs? A. Prejudgment Interest (

i) Plaintiff’s Argument [ 6 ] The Plaintiff argues that the applicable statutory rate of interest that should be applied to the judgment is 3.0% and that it should run from the Plaintiff’s last day of employment on January 19, 2010.

Using that calculation the amount of interest is $15,584.59. (ii) Defendant’s Argument [ 7 ] The Defendant accepts the starting date for the calculation but argues that the prime rate varied during the prejudgment period between 2.25% and 3.0% with the result that the amount of interest is reduced to $15,198.70 as set out below: Time period Court Award X Interest Rate Interest Jan. 19 - June 1, 2010 $133,812.61 x 2.25% $ 1,100.55 June 2 - July 20, 2010 $133,812.61 x 2.50% 440.20 July 21, 2010 - Sept. 14, $133,812.61 x 2.75% 555.01 2010

Sept. 15, 2010 - Oct. 28, $133,812.61 x 3.00% 13,102.94 2013 $15,198.70 Principal $133,812.61 Prejudgment interest $ 15,198.70 Total $149,011.30 (iii) Analysis [ 8 ]

Section 53 of the Judicature Act states: Prejudgment interest 53.

(1) Subject to

section 55, a person who is entitled to a judgment for the payment of money is entitled to claim and have included in the judgment an award of interest on the money calculated, (

a) where the judgment is given on a liquidated claim, from the day the cause of action arose to the day of the judgment; or (

b) where the judgment is given on an unliquidated claim, from the day the person entitled gave notice in writing of his or her claim to the person liable for the claim to the day of the judgment. Rate of prejudgment interest

(2) The rate of interest under subsection (1) is calculated as follows: (

a) for the first six months of a year, the rate of interest is the prime business rate as at January 1 of that year; (

b) for the last six months of a year, the rate of interest is the prime business rate as at July 1 of that year. [ 9 ] I interpret section 53(2) as requiring a two-step calculation. The first step is to ascertain the rate on January 1. The second step is to check the rate on July 1 to see if rate has changed. If it has changed then the new rate is in effect for the next six months regardless of whether there are other changes during that six- month period. The interest rate applicable to the first six months starting on January 1, 2010 is 2.25%.

Since it changed to 2.5% on July 1 the rate for the second six months from July 1 to December 31, 2010 is 2.5%. The rate on January 1, 2011 and on July 1, 2011 was 3.0 % so that all of 2011 is calculated at the 3% rate. The rate on January 1 and July 1 2012 was 3.0% so that all of 2012 is calculated at the 3% rate. The rate on January 1 and July 1, 2013 was 3.0% so that all of 2013 is calculated at the 3% rate. [ 10 ] Using these interest rates I calculate the prejudgment interest as $14,696.64 follows: (

a) January 1-July 1, 2010 $133,812.61 x 2.25% = $1,496.88 (

b) July 1-December 31, 2010 $133,812.61 x 2.5% = $1,860.54 (

c) January 1-December 31, 2011 $133,812.61 x 3.0% = $4,014.37 (

d) January 1-December 31, 2012 $133,812.61 x 3.0% = $4,014.37

(

e) January 1-October 28, 2013 $133,812.61 x 3.0% = $3,310.48 B. Costs (

i) Plaintiff’s argument [ 11 ] As I held in Rennie this Court has a wide discretion in awarding costs. [ 12 ] Relying on Rule 201(1) of the Rules the Plaintiff argues she should be awarded party-party costs to December 18, 2012 and solicitor-client costs thereafter because she obtained judgment substantially more favourable than a written Offer To Settle she made in the amount of $136,300 inclusive of prejudgment interest and costs. [ 13 ] The Plaintiff relies on Guergis v Novak, 2013 ONSC 1130 , 225 ACWS (3d) 928 , to argue that this court should follow the Ontario practice.

In Ontario, party-party costs (termed “partial indemnity” costs) are calculated by awarding 60% of the solicitor’s normal hourly rate multiplied by the hours worked, and solicitor-client costs (termed substantial indemnity costs in Ontario) are calculated by awarding 90% of the solicitor’s hourly rate multiplied by the number of hours worked. [ 14 ] The Plaintiff provided copies of invoices dated December 31, 2010 in the amount of $1,195.54; May 31, 2011 in the amount of $2,040.15; as well as a draft invoice for unbilled time and disbursements to October 28, 2013 in the amount of $145,322.47 plus $1,050 for private accommodations in Iqaluit during the trial at the rate of $150 per night for 7 nights. [ 15 ] Multiplying the $75,287.00 fees component of these invoices by 60% the party-party costs to December 18, 2012 are as follows: Fees $45,172.20 Disbursements $6,400.79 H.S.T. $6,597.11 Total $58,170.01 [ 16 ] Multiplying the $48,755 fees component of these invoices after December 18, 2012 by 90% the solicitor-client costs are as follows: Fees $43,879.50 Disbursements $2,900.26 H.S.T. $5,931.35 Total $52,711.11 [ 17 ] Adding the two totals together the Plaintiff is claiming $110,881.12. [ 18 ] As an alternative to this calculation the Plaintiff relies on Nunavut v Nunavut Teachers’ Association, 2010 NUCJ 18 , 193 ACWS (3d) 391 [Nunavut Teachers] , and Canadian Egg Marketing Agency v Richardson, [1996] NWTJ No 85 [CEMA] , to argue that she should be awarded costs of eight times column 6 of

Schedule A of the Rules . In CEMA the plaintiff was awarded quadruple the party-

party costs in

Schedule A to sanction the defendant for egregious and unnecessary litigation, while in Nunavut Teachers I increased thetariff items to take into account inflation from the date the Rules came into force in 1996. The Plaintiff argues a doubling of the tariff isreasonable to take inflation into account to the date trial. [19] Using this approach the Plaintiff would be awarded $44,440 in fees, $6,400.70 for disbursements and $6,501.92 for HST for a totalof $57,342.62 in costs to December 18, 2012.

Adding in the solicitor-client costs from December 19, 2012 as calculated above would putthe total costs at $110,053.73. [20] The Plaintiff argues she should be awarded CEMA type enhanced costs on column 6 because of the complexity of the issues andbecause the combined damages, interest and costs exceed the $150,000 threshold. She also argues that the following factors suggest thatthe defendant should be sanctioned with enhanced costs: (

a) The finding that Cronin was hostile to the plaintiff and wanted her terminated; (

b) The degree of success achieved; (

c) The pursuit of a counterclaim that was found to be entirely without merit; (

d) The Plaintiff incurred some additional costs in the defence of the counterclaim; (

e) The unsuccessful pursuit of a security for costs motion; (

f) The fact that the Plaintiff had to bring a motion to compel the giving of answers to undertakings and to compel the answering ofquestions refused at examinations for discovery; (

g) The aggressive and ultimately unproductive posture undertaken by the Defendant in response to the Plaintiff’s several Offers toSettle; and (

h) The aggressive defence to the Plaintiff’s claim included the filing of submissions in opposition to the Plaintiff’s claim foremployment insurance benefits in respect of which the Defendant had no direct or material interest. (ii) Defendant’s Argument [21] Relying on Workshop Holdings Limited v CAE Machinery Ltd., 2006 BCSC 389, [2006] BCWLD 2877 [Workshop], theDefendant argues that the Plaintiff has not disclosed whether she entered into a contingency agreement with her solicitor nor has sheprovided any evidence of having received any invoices.

As result the documents provided are “pre-bills” reflecting time that her solicitoralleges were spent in the prosecution of this action. If the Plaintiff was on a contingency agreement she would be charged somepercentage of the total judgment rather than the time spent as claimed by the solicitors for the Plaintiff.

In the absence of a contingencyagreement being provided, or a statement in an affidavit from the Plaintiff as to the terms of the retainer, the Court should begin itsdeliberation by applying the tariff of party-party costs. [22] The Defendant argues that the facts behind the award of increased costs in Rennie are not present in this case, and argues that thegeneral principles summarized in that case are applicable to determine the costs the Plaintiff should be awarded in this case.

In Rennie,this Court adopted the general principles set out by Schuler J. in Keppel v Assn. of Professional Engineers, Geologists & Geophysicists(Northwest Territories), (NWT SC), [1996] NWTR 317, [1996] NWTJ No 84 [Keppel], from The Law of Costs[Orkin]. [23] Orkin notes that courts will sometimes increase party-party costs to the almost full indemnity of solicitor-client costs to discouragefrivolous or vexatious litigation or to punish blameworthy conduct by a litigant. However, Orkin notes that this type of costs will only beawarded in rare and exceptional cases.

The conduct of the Defendant in the case at bar falls below the conduct required for an award offull solicitor-client costs. The clear evidence of the Defendant that was acknowledged by the Plaintiff was that the Defendant wanted thePlaintiff to remain in its employ. Its conduct in defending this case was not reprehensible, scandalous, or outrageous, nor even in badfaith.

It was simply advancing the position that it did not want to negotiate the termination of the Plaintiff because it wanted the Plaintiffto remain in its employ. [24] The Defendant argues that a successful Plaintiff should not receive an award in “damages” by receiving more in legal fees than sheis liable to pay. If this Court awarded the Plaintiff the $124,042.00 in costs suggested in counsel's submission and she is bound by a

contingency arrangement as high as 40% of any judgment secured, she would receive a windfall. [ 25 ] The Defendant argues that the issues in this action were not complex. No expert witnesses were required. Wrongful dismissal and constructive dismissal cases are fact-driven cases that require the trial judge to access the credibility of witnesses. The legal concepts are not overly complex such as to merit an increase in a costs award.

Parties have a right to assert their positions both legally and factually in the defence or prosecution of a matter and there is no merit to the Plaintiff’s suggestion that the Defendant's unwillingness to surrender to the Plaintiff's demands is somehow in bad faith, or otherwise. [ 26 ] The Defendant took a reasonable position at trial in the defence of this matter, particularly in light of the media exposure to which the Defendant had been subjected, without replying, when the Plaintiff began asserting her position.

As set out in Tab 6 of the Defendant’s Written Submissions the Plaintiff went public to the media and put the Defendant in a difficult position, in terms of its public image, to simply settle on any basis, much less the demands of the Plaintiff, through counsel. [ 27 ] The only basis for the award of solicitor-client costs would flow from the Plaintiff’s Offer To Settle in the amount of $136,300 “inclusive of prejudgment interest and costs down to the date of this offer”.

That offer was only open for acceptance for seven days and expired on December 25, 2012. [ 28 ] By the other terms of the offer it could be accepted thereafter up to the date of trial by the payment of the Plaintiff’s solicitor-client costs after December 25. However, the Defendant was unable to calculate the additional costs after December 25. In her written submission the Plaintiff calculated the solicitor-client costs after the date of service of the Offer To Settle as being $52,711.11.

Therefore, as of the date of trial the Offer To Settle amounts to $127,998.11 in legal fees alone exclusive of interest and disbursements. [ 29 ] This level of solicitor-client costs should only be awarded in “rare and exceptional circumstances”. [ 30 ] The only time the Offer To Settle could be accepted without payment of solicitor-client costs was between December 18 and 25, 2012.

This is not an effective Offer To Settle as contemplated by the Rules so as to compel an increase in any costs award. [ 31 ] As an alternative to the multiplication of the party-party costs as described in CEMA the Defendant suggested the Court adopt the more conservative approach taken in Czarnecki v Malcolm, 2012 ABQB 404 , [2012] AWLD 3241 ; Envoy Relocation Services Inc. v Canada (Attorney General), 2013 ONSC 2622 , 227 ACWS (3d) 1158 ; and Agius v Home Depot Holdings Ltd., 2011 ONSC 5272 , 207 ACWS (3d) 641 . (iii) Analysis [ 32 ] In paragraph 14 of Rennie this court accepted the basic principles on costs from Orkin as described in Keppel as follows:

a) a successful litigant has by law no right to costs, but rather a reasonable expectation of receiving them, subject to the Court's discretion, which is in turn subject to any statutory provisions and the Rules of Court;

b) the discretion of the Court to deprive a successful litigant of his or her costs is a discretion which must be exercised judicially and upon proper material connected with the case or having relation to the subject matter of the action;

c) in exercising its discretion, the Court may consider the conduct of a party during, prior to and leading up to or contributing to thelitigation;

d) the degree of success achieved by a party is relevant to the Court's discretion as to costs;

e) a successful party is entitled to costs and ought not to be deprived of same except for good reason, such as misconduct of the party,use of the wrong procedure, oppressive and vexatious conduct of proceedings or other cause such as where the question involved is anew one not previously decided by the courts;

f) the Court has discretion to award solicitor-client costs to a successful party, although it should not do so absent special grounds. InYoung v. Young, [[1993] 4 S.C.R. 3, ], [1993] 8 W.W.R. 513, a majority of the Supreme Court of Canada approved thefollowing principle with respect to solicitor client costs: [p. 134] Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. [33] In the case at bar the Plaintiff was fully successful in a pre-trial motion and in the result at trial. Following the basic rule thePlaintiff is entitled to party-party costs under

Schedule A of the tariff set out in the Rules. As I noted in Nunavut Teachers the tariff hasnot been revised since the Rules came into force in the Northwest Territories in 1996 and were inherited by Nunavut in 1999. This courtrecognized that the cost of living in Iqaluit was double that in Yellowknife in Maloney v Browning Crocker Inc., 2008 NUCJ 7 ,2008 NUCJ 07, 164 ACWS (3d) 572. As a result, in Nunavut Teachers I used my discretion to increase the party-party costs to take intoaccount the higher cost of living in Nunavut and the effect of inflation. Until there is a revision to

Schedule A, I am satisfied thatdoubling the amounts in

Schedule A is a fair and reasonable way of exercising my discretion to provide realistic party-party costs. [34] Party-party costs may also be increased to take into account the conduct of a party by awarding increased party-party costs that aresomewhere between party-party costs and solicitor-client costs. This was done in CEMA as well as in Metis Nation Local 66 v NorthSlave Metis Alliance, 1999 NWTSC 23, [1999] NWTJ No 138, and Woodley v Yellowknife Education District No.1, 2000 NWTSC 7,[2000] NWTJ No. 8.

In the recent case of Anderson v Bell Mobility Inc., 2011 NWTSC 28, [2011] NWTJ No 36 [Anderson], Veale J.described this type of cost award as “enhanced costs”. [35] While this litigation was not complex I am satisfied that there is merit in some of the Plaintiff’s arguments about how theDefendant defended this action. In particular it pursued a counterclaim that was totally without merit and pursued an aggressive andultimately unproductive posture in responding to the Plaintiff’s offers to settle.

There was also a degree of incivility in Cronin’s attitudeto the Plaintiff that are described in the judgment that are exemplified in her successful attempt in preventing the Plaintiff from obtainingemployment insurance benefits. As Veale J. noted in Anderson, in adopting the comments of LeBel J. in British Columbia (Minister ofForests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 [Okanagan], the modern approach to costs is to treat them as aninstrument of policy. 1. The traditional principle for an award of costs is to indemnify the successful party after judgment.

They are not related to assuringparticipation in a proceeding (Okanagan at paras 19 - 21). 2. The modern approach to costs is to treat costs as an instrument of policy. This approach considers the indemnification principle asoutdated and suggests that courts as a matter of routine employ the power to order costs as a tool to further the efficient and orderlyadministration of justice (Okanagan at paras 22 - 26). 3.

Access to justice is also a policy consideration, particularly in Charter cases (Okanagan at paras 27 - 30). [36] However, most of the questionable actions of the Defendant took place after the Offer To Settle and I am satisfied the application ofRule 201(1) will reflect the Court’s disapproval of this conduct and serve as a precedent in the future that this court expects litigants tomake all efforts to compromise and try and settle actions. [37] As a result of these increases to

Schedule A the Plaintiff is awarded party-party fees to December 18, 2012 in the amount of$11,100.

[ 38 ] These basic rules are subject to Rules 193-206 dealing with offers to settle that modify the basic rules. Rule 201(1) states: 201.

(1) A plaintiff who makes an Offer To Settle at least10 days before the commencement of the hearing is entitled to party and party costs to the day on which the Offer To Settle was served and solicitor and client costs from that day where (

a) the Offer To Settle is not withdrawn, does not expire before the commencement of the hearing and is not accepted by the defendant; and (

b) the plaintiff obtains a judgment on terms as favourable as or more favourable than the Offer To Settle. [ 39 ] The Offer To Settle stated as follows: 1. The Defendant shall pay to the Plaintiff the sum of $136,300, inclusive of statutory prejudgment interest and costs down to the date of this Offer; 2. The Plaintiff’s offer in accordance with paragraph 1 shall remain open for acceptance for 7 days following the date of this Offer; 3.

Following such 7 day period, the Plaintiff will accept the sum set out in paragraph 1 of this Offer, plus prejudgment interest calculated from the date of this Offer to the date of payment at the rate of 0.05% per year, plus the Plaintiff’s solicitor and client costs for all steps taken in the action subsequent to the date of this Offer; 4. The Plaintiff’s Offer as set forth in paragraph 3 of this Offer To Settle will expire five minutes after the commencement of the trial.

December 18, 2012 [ 40 ] Since the Offer To Settle was not accepted, the Defendant argues that only paragraphs 3 and 4 are applicable, and following the reasoning of Workshop these terms should be treated as being ineffective because they are not clear and unambiguous.

To use the words of the Defendant from paragraph 22 of its Written Submissions, “solicitor-client costs have not been awarded, and those costs were not calculable as of the date of offer (or the 7 day subsequent commencement date)”. [ 41 ] In Workshop the Offer To Settle was for $115,000 and “solicitor-client costs in accordance with the Waste Management Act of BC” [WMA] (Workshop at para 25). In holding the offer was not effective Wedge J. noted that the WMA did not refer to solicitor and client costs but had a

section that referred to “reasonably incurred costs of remediation” that included “legal costs”. Since the term legal costs was ambiguous and could mean party-party costs, special costs or some other type of costs, Wedge J. found the wording was not clear and unambiguous and the Offer To Settle was not effective. [ 42 ] Peterkin v. Union of Northern Workers, 2006 NWTSC 58 , [2006] NWTJ No 73 [Peterkin] and Re Seeley, 2008 NWTSC 94 , [2008] NWTJ No 88 , [Seeley] applied similar reasoning.

In Peterkin , Vertes J. noted that an Offer To Settle should be fixed, certain and understandable and should not be a moving target. In Seeley, Schuler J. stated that the party to whom the offer is addressed and the Court should not have to guess what the offer is, nor should the Court rewrite the offer to make it meaningful. [ 43 ] The Defendant did not dispute the statements in the Plaintiff’s Written Submissions that prior to the Offer To Settle the Plaintiff had also made earlier offers dated May 18, June 22, and October 22, 2012.

These offers were summarily rejected without making counteroffers except for a nuisance offer made on June 13, 2012 for $10,000. As the Plaintiff stated she was put in the awkward position to keep negotiations moving of having to counter her own offers if any prospect of settlement was to be canvassed.

[ 44 ] Given this background the Plaintiff had little choice but to structure the Offer To Settle as she did. She offered to accept $136,300 inclusive of costs and prejudgment to the date the offer expired on December 25, 2012. The trial date had been set for June 2013 and she knew she would be incurring substantial legal fees from that point forward that would reduce the amount she would have received if the offer had been accepted before December 25.

From that point to the trial date she either continued to negotiate with herself by making further offers to settle that included the legal costs to date, or to structure the offer so that the legal fees could be calculated if the Defendant wanted to talk settlement. While the Defendant could calculate the additional prejudgment interest it could not ascertain the solicitor-client costs without asking the Plaintiff to provide them. [ 45 ] I am satisfied that the ambiguity present in Workshop is not present in the Offer To Settle.

To accept the Defendant’s argument and find the offer was not clear and deprive the plaintiff the additional costs sanctions imposed by Rule 201(1) would be tantamount to rewarding conduct that the Rule was intended to prevent. If the Defendant had any intention of seriously pursuing a reasonable settlement it simply had to ask the Plaintiff what its solicitor-client costs were at any stage before trial.

I am satisfied the Offer To Settle was clear enough to satisfy the Rule and trigger the solicitor-client cost sanctions because the judgment was more favorable than the Offer To Settle. [ 46 ] Tab 9 of the Plaintiff’s Written Submission calculates the legal fees the Plaintiff would have been charged at regular hourly rates for the work carried out after December 18, 2012 and totals $48,755. Adding this amount to the $11,100 in party-party fees results in a total award for fees of $59,855. In addition, the Plaintiff incurred disbursements of $9,300.96.

The H.S.T. on fees and disbursements would be $8,990.27 for a total cost award of $78,146.23. [ 47 ] In paragraph 35 of Workshop, Wedge J. held the contingency agreement was of central importance to the determination of the meaning of the words “legal costs” under the WMA. She applied the reasoning of Kirkpatrick J in Canadian National Railway Company v A.B.C. Recycling Ltd., 2005 BCSC 647 , 41 BCLR (4th) 317 , that those words meant: “those legal costs that are objectively reasonable in the circumstances of the case.

CN is entitled to an award of its reasonable legal costs actually incurred.” [ 48 ] In the supplementary reasons, Canadian National Railway Company et al v A.B.C. Recycling Ltd., 2005 BCSC 1559 , (2005) 47 B.C.L.R. (4th) 185 , Kirkpatrick J. held the words were analogous to special costs under Rule 57 of the British Columbia Rules of Court. That type of cost award was the equivalent of solicitor-client costs that were typically reflective of reprehensible conduct.

Since there was no contingency agreement before her, she directed that there be a reference to the Registrar to determine what were “reasonable legal costs actually incurred”. Since in Workshop Wedge J. had the contingency agreement before her, she held the “reasonable legal costs actually incurred” were those due under the contingency agreement rather the draft statement of the solicitors showing the actual time spent on the file at the applicable hourly billing rates. [ 49 ] In the case at bar I am interpreting Rule 201(1) of the Rules and the meaning of the word solicitor and client costs.

If the costs were taxed under Rules 681-692 the solicitor would have prepared and signed a solicitor-client Bill of Costs. Under Rule 686 (1) the Bill of Costs would contain “a reasonable statement or description of the services rendered, showing the charge or charges for the services and a detailed statement of the disbursements”. In the absence of a formal taxation I consider Tab 9 of the Plaintiff’s Written Submission as the equivalent of the requisite solicitor-client Bill of Costs.

Rule 201(1) is silent about the impact of a contingency agreement, but I am satisfied that the draft time descriptions and applicable hourly rates set out in Tab 9 is what meant by solicitor and client costs under Rule 201(1). [ 50 ] The Defendant argues that the Plaintiff may have been on a contingency agreement that could result her paying less than the costs I have discussed above.

In the absence of proof that one does not exist the Defendant argues I should consider my award in the light a maximum contingency of 40% to ensure the Plaintiff will not receive a windfall. [ 51 ] While I do not accept a contingency agreement is encompassed by the words solicitor-client costs, I note that the Plaintiff would have paid legal costs of $54,520 under a 40% contingency agreement as opposed to the fees I have awarded of $59,855. It was also common in my days in practice for the solicitor to also be paid any party-party costs recovered.

Assuming this scenario the Plaintiff would not have made a windfall by being on a contingency agreement. III. CONCLUSION [ 52 ] The Plaintiff is awarded prejudgment interest in the amount of $14,696.64 and costs of $78,146.23.

Dated at the City of Iqaluit this 30th day of January, 2014. Justice Earl D. Johnson Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Johnson _______________________________________________________ In paragraph [36] the sentence “…the questionable actions of the Plaintiff took place…” has been changed from “Plaintiff” to “Defendant.” Please replace the amended page in your hard copy of the judgment.