Creelman v. Rocking Chair Haven Real Estate Ltd.

Creelman v. Rocking Chair Haven Real Estate Ltd. Court Supreme Court Date 2014-10-28 Citation 2014 NSSC 455 Docket Tru 426160 Judge/Registrar/Adjudicator Van den Eynden, Elizabeth (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Creelman v. Rocking Chair Haven Real Estate Ltd., 2014 NSSC 455 Date: 20142810 Docket: Truro No. 426160 Registry: Truro Between: Edwin Creelman and Louise Creelman Applicants v. Rocking Chair Haven Real Estate Limited Respondent DECISION ON COSTS Judge: The Honourable Justice E. Van den Eynden Heard: June 6, 2014 Written Submissions: Oral Decision: Written Release: July 10, 2014 and July 18, 2014 October 28, 2014 January 7, 2015 Counsel: Peter Lederman, Q.C., Solicitor for the Applicants Merle Collins, President of Rocking Chair Haven Real Estate Limited, Respondent, self-represented By the Court: [1] I recently learned that Mr. Chisholm would not be representing the Corporate Defendant at this appearance. The principal is here, Mr. Collins. I do note that Mr. Chisholm did not file an application to withdraw or have any notice of intention to act in person filed. Mr. Collins indicates it is by agreement that he is here on his own and he has no objection to the fact Mr. Chisholm is not here. [2] We are here today to receive my oral decision on costs. The parties were unable to reach agreement on costs and in that event I retained jurisdiction to decide the issue of costs. I have received and reviewed the respective advance written submissions on costs provided by counsel. Competing positions on costs are put forward. Position of the Applicants [3] The Applicants are the successful parties. They submit that the amount involved falls within the range of $40,000.00 to $65,000.00 and basic scale two should apply which translates into $7,250.00 plus $2000.00 per day for each day of trial. The Applicants submit that formula should be the cost outcome and I should essentially ignore any costs efficiency arguments advanced by the Respondent. Position of the Respondent [4] Mr. Chisholm argued in his written submissions that each party should bear their own costs. Alternatively, if costs are to be awarded the award should be a lump sum of $1,000.00. [5] Respecting the amount involved, the Respondent disputes the range put forward by the Applicants; suggesting an alternate range of the dollar amount that was at issue in trial. In particular, in the range of $17,000.00. [6] Mr. Chisholm pointed out the amount sought by the Applicants is more in line with solicitor/client costs and this is not a case which involves exceptional circumstances. Therefore, to award costs that are in keeping with solicitor/client costs would be punitive to the Respondent and that this case proceeded in a timely and expeditious fashion. That should be factored into my decision on costs. [7] In his brief Mr. Chisholm did make reference to settlement offers that were communicated prior to trial; however, no particulars of the settlement offers were presented to me. Presumably there were no formal offers made or none which would have impacted how costs are computed under our Civil Procedure Rules, otherwise counsel would have provided me with such offers. Legal Principles [8] An award of costs should achieve justice between the parties. A successful party is generally entitled to costs. Costs are in the discretion of the Judge; however, a decision not to award costs must be for good reason, reason based on sound principles or rationale. [9] An award of solicitor/client costs are reserved for exceptional circumstances often to highlight the Court’s disapproval of one parties conduct. An award of party and party costs should not be a complete indemnity or something very close to a complete indemnity. Rather an award for party and party costs should equate to a substantial contribution toward a parties reasonable expenses in presenting or defending a proceeding. [10] The fee tariff is the go to guide a Court uses. To utilize Tariff A the first step is to see if we can determine the monetary amount involved in the case. If ascertaining the monetary amount becomes difficult or problematic, the Court may adopt a rule of thumb, in particular, by equating each day of trial to an amount in the range of $20,000.00. [11] Departure from the tariff should be infrequent. That said, if the award determined by applying the tariff does not equate to a substantial contribution towards reasonable expenses, it is preferable not to artificially increase the tariff amount, rather award an appropriate lump sum. In determining reasonable expenses, one factor I consider is the fees billed to the successful party. [12] For authority for the above principles, I refer to the Civil Procedure Rules, in particular Rule 77. There is a recent case of Justice MacDonald, Kozma v. Kozma, 2013 NSSC 20. In that decision Justice MacDonald referred to several cases on costs and she distilled relevant principles from those cases, including the relevant principles which I noted. [13] I want to expand on one of the principles. In my view, particularly given the facts before me, if the award determined by the tariff equates to a complete indemnity or close to a complete indemnity an appropriate lump sum should also be considered. [14] I will apply the above principles to the facts before me. Facts [15] In this case the Applicants were the successful party. They are entitled to costs. There is no reason for each party to bear their own costs in this case. This is an appropriate case for party and party costs, not solicitor and client costs. There are no exceptional circumstances to warrant an award of solicitor and client costs. Costs should equate to a substantial contribution to the successful parties reasonable expenses. [16] Determining the amount involved in this case is not clear cut. The main relief sought by each party was non-monetary in nature. The Applicants sought relief from forfeiture and to treat the agreement and their rights under it as ongoing. The Respondent wanted breaches declared and the agreement to be null and void. That said, monetary issues were evident in the evidence such as the amount outstanding, somewhere in the range of $15,000.00, the return of the deposit, administrative fees, and there was also the issue of repairs or improvements made to the property by the Applicants. [17] If I had to determine a monetary amount it would be greater than that asserted by the Respondent and it would be less than that asserted by the Applicants. If a tariff range had to be identified it would be more in keeping with the $25,000.00 to $40,000.00 range. The number involved would be closer to the $25,000.00 number than the $40,000.00 number. [18] I find this case to involve more non-monetary issues than purely monetary, in which case I look to the complexity of the proceedings and the importance of the issues. I have also considered the efficient manner in which both parties presented their respective positions. This case was streamlined and it was presented efficiently by both counsel. [19] Turning to the issue of reasonable expenses. First, I do find the account submitted by Mr. Lederman is, on the face of it from a solicitor and client perspective, a reasonable expense. It is very similar to the account from the Respondent side. I did ask Mr. Lederman to confirm the total amount of solicitor and client fees incurred by the Applicant. Mr. Lederman advised the total amount was $7,370.45. That is inclusive of HST and filing fees. [20] I note the amount Mr. Lederman requested in his brief on costs exceeds actual total solicitor and client costs by approximately twenty-five percent. (That is if I use his requested scale of $7,250.00 plus $2,000.00 per day.) In my view, seeking costs greater than that which is incurred is not appropriate. An award for costs should, in my view, equate to a substantial contribution but not a complete indemnity. Certainly not a windfall to the successful party. Decision [21] I have determined that a just amount of costs to be paid by the Respondent to the Applicant is $5,000.00. That amount is to be paid forthwith by the Respondent to the Applicants. Justice E. Van den Eynden 01/05/15