Polegato v. Martell

Polegato v. Martell Court Supreme Court Date 2020-02-14 Citation 2020 NSSC 396 Docket Pt. Hawk No. 489454 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Relations See also - Polegato v. Martell - 2020 NSSC 394 - 2020-02-14 - Decision See also - Stanley v. Martell - 2020 NSSC 395 - 2020-04-24 - Decision Decision Content Supreme Court of Nova Scotia Citation: Polegato v. Martell and Marchand, 2020 NSSC 396 Date: 20200214 Docket: Pt. Hawk No. 489454 Registry: Port Hawkesbury Between: Ellen Polegato and Gina Stanley Applicants v. Councillor Alvin Martell and Warden Brian Marchand Defendants Library Heading Judge: The Honourable Justice Patrick J. Murray Heard: October 11, 2019, in Port Hawkesbury, Nova Scotia Written Decision: February 14, 2020 Subject: Costs Summary: Ms. Polegato was not present at the hearing. After discussing the matter with the co-applicant, Ms. Stanley, Ms. Polegato decided not to proceed with her application. The Respondents sought an Order for Costs incurred until she discontinued her application, as considerable time, energy and resources were spent by the Respondents in responding to the application. Result: Court found the sum of $1,500. for each Respondent would be a reasonable cost amount, for a total cost award of $3,000. plus disbursements in the amount of $118.75 and $57.05 for a total of $1,618.75 payable to Mr. Martell and a total of $1,557.05 for Mr. Marchand. The costs shall be payable as follows: Fifty percent in 30 days. Balance in a further 30 days. Total payable within in 60 days. Caselaw: Weir v. National Bank, 2011 NSSC 430 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Polegato v. Martell and Marchand, 2020 NSSC 396 Date: 20200214 Docket: Pt. Hawk No. 489454 Registry: Port Hawkesbury Between: Ellen Polegato and Gina Stanley Applicants v. Councillor Alvin Martell and Warden Brian Marchand Defendants Cost Decision Judge: The Honourable Justice Patrick J. Murray Heard: October 11, 2019, in Port Hawkesbury, Nova Scotia Oral Decision: February 14, 2020 Counsel: Gina Stanley, self represented Richard Norman for the Respondents Councillor Alvin Martell and Warden Brian Marchand By the Court: Introduction [1] This is a decision on costs. The Applicants, Ellen Polegato and Gina Stanley, filed an Application in Court pursuant to the Municipal Conflict of Interest Act. Background [2] Subsequent to the filing of the Application, the Respondents each filed a motion asking that the Application be dismissed. The motions will be referred t collectively as the “motion”. A motion for directions was held and the motion hearing was set for October 22, 2019. [3] The Applicant, Ms. Stanley, and both Respondents appeared for the hearing. Ms. Polegato was not present in Court for the motion hearing on that date. The day before, she had filed documents, and advised the Court she wished to appear by video from Fort MacMurray, Alberta. The Court prepared a letter to Ms. Polegato, regarding the various issues concerning her request, including the late notice of her intention. [4] At the hearing, Ms. Polegato was permitted to appear by phone. Following a discussion on the record, with Ms. Polegato having had an opportunity to discuss the matter with the co-applicant, Ms. Stanley, Ms. Polegato made the decision that she would not be proceeding with her application. Position of the Respondents, Mr. Martell and Mr. Marchand [5] The Respondents submit that an Order for Costs should be made against the Applicant, Ms. Polegato. Up to the point of her discontinuing her application, considerable time, energy and resources were spent by the Respondents in responding to the application. [6] The Respondents refer to the nature of the allegations against them as being serious. There should be cost consequences resulting from a decision to withdraw on the day of the hearing, the submit. [7] The Respondents submit that Rule 9.06 is applicable and that the most appropriate way for the Court to determine the cost issue is in reference to Rule 77 (as Rule 9.06 indicates). In particular, the Respondents say that Tariff C applies, given the matter had been scheduled as a full day Chambers motion. [8] The Respondents are seeking costs in the amount of $4,000. plus disbursements. In the circumstances, an award of $2,000. for each Respondent is appropriate, given the advanced and complex nature of the motion. Position of the Applicant, Ellen Polegato [9] In her cost submissions, Ms. Polegato indicates she had sincere intentions to remain on the case. Her withdrawal she submits was due to circumstances of her residing in Fort MacMurray, and not living in Nova Scotia. [10] In addition, Ms. Polegato states, she made attempts to arrange her appearance by video conference, through various services. None of the organizations she said, were able to assist. [11] Among other things, her lack of a permanent position made it difficult for her to explain her circumstances to her employer and by Monday, October 21 the arrangements were still incomplete. [12] Ms. Polegato argues that in terms of added costs, the Respondents would still be required, without her involvement to respond to the application of Ms. Stanley, and present their motion for dismissal. [13] Ms. Polegato stated the motion to dismiss was unnecessary, stating that her withdrawal is based on her inability to be present to argue the motion. [14] Ms. Polegato submitted that, financially her ability to pay a cost order, is limited. She referred to her lack of secure employment since 2013. Her current employment contract ends in March, 2020. She has a mortgage and a son in university, that she is helping to support. Decision [15] The primary mandate under Rule 77, is for the Court to make an order with respect to costs that will do justice, between the parties. [16] There are general principles that apply such as costs following the result, meaning that the successful party is entitled to costs, unless a judge orders otherwise. [17] Another is that costs should normally be awarded in accordance with the Tariff of Costs included in Rule 77. In appropriate circumstances, a lump sum can be awarded instead of an amount based on the tariff. [18] In addition, there are factors that may result in increasing or reducing the tariff amount, as contained in Rule 77.07. These include, the conduct of a party affecting the speed or expense of the proceeding; a step taken in a proceeding improperly, abusively, by neglect, mistake or unnecessarily. [19] An important principle is that costs shall constitute a substantial but incomplete indemnity of the legal costs incurred by the opposing party. [20] In the present case, the Respondents argue there should be a cost sanction associated with making such allegations in Court, and then simply “melting away”. [21] In stating her position, Ms. Polegato did not, in the circumstances, think it was appropriate for her to request an adjournment or place Ms. Stanley in a position of having to represent her (Ms. Polegato) in her absence. [22] I do not accept, that she merely withdrew because the allegations were being challenged. That said, her withdrawal did result in the Court having to deal with other issues, such as whether her affidavit would stand as evidence, given she was no longer a party or available for cross-examination. I decided it would not. [23] I agree with the Respondents that an award of costs is appropriate. Under Rule 9.06 costs are payable by the party who withdraws or discontinues to the opposing party in an amount to be fixed under Rule 77- Costs. That is the presumption, unless a judge orders otherwise. [24] In Weir v. National Bank, 2011 NSSC 430, the Honourable Justice Robert Wright, had occasion to discuss the obligation of a party to pay costs upon filing a Notice of Discontinuance. [25] I adopt paragraphs 5 - 11 of the Weir decision in this matter. [26] In terms of the application in Court, the matter had not yet been set down for a hearing on the merits. The Respondents filed Notices of Contests. [27] The Respondent are correct in stating that their counsel and both Respondents had prepared for a full day hearing involving both Applicants, up to and including October 22, 2019. [28] In terms of what is just, I agree the starting point would be at least the amount in tariff C for a full day hearing being the sum of $1,000. for each Respondent. [29] In terms of the multiplier of 2, 3, 4 times the tariff amount, when the matter is finally determined, a discontinuance does not easily fit into that category, as would for example, a ruling in a Summary Judgment motion or Judicial Review where a judicial determination is made. [30] On the other hand, the Court accepted the Ms. Polegato’s decision to withdraw, and it had the effect of terminating her application. [31] I find it is tariff F that is intended to deal with the situations where there has been a discontinuance, but the method of determining the quantum in that tariff, is more readily applicable to situations where there has been monetary settlement, or where the amount involved can reasonably be established. [32] This Application does not seek monetary compensation. From the perspective of the Respondents, it is their reputations and standing as elected officials that is very much in issue, in terms of the allegations being made. [33] Therefore, I find that tariff C being costs assessed by a Judge presiding in Chambers, to be the most applicable to these facts before me. [34] I agree with the Respondents that the complexity and importance to the parties are valid considerations, as well as the amount of effort involved in preparing to respond to the Applications, including the motion. [35] Having weighed and considered all of these factors, I find that the sum of $1,500. for each Respondent would be a reasonable cost amount, for a total cost award of $3,000. plus disbursements in the amount of $118.75 for Mr. Martell and $57.05 for Mr. Marchand for a total of $1,618.75 payable to Mr. Martell and a total of $1,557.05 for Mr. Marchand. [36] The amount claimed of $4,000. is not unreasonable, but a multiplier of 1.5 times ($1,000.) rather than 2 times the tariff amount of $1,000. best reflects both parties position on costs. [37] I accept that the Applicant should have made arrangements much sooner to enable her participation, but that she did not prolong the matter by seeking an adjournment. [38] In terms of financial consequences and ability to pay, litigants, contemplating legal action must be aware of the obligations that commencing legal action places on all parties. Cost consequences are realistic and necessary consideration. [39] The costs shall be payable as follows: Fifty percent in 30 days. Balance in a further 30 days. Total payable within in 60 days. [40] Order accordingly. Murray, J.