Doucette v. Nova Scotia

Doucette v. Nova Scotia Court Supreme Court Date 2015-10-28 Citation 2015 NSSC 320 Docket Hfx 412065 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Doucette v. Nova Scotia, 2015 NSSC 320 Date: 2015-10-28 Docket: Hfx No. 412065 Registry: Halifax Between: Laura Doucette Plaintiff v. Her Majesty in the Right of the Province of Nova Scotia and Mr. David Grimes Defendants Judge: The Honourable Justice Peter Rosinski Heard: October 27, 2015, in Halifax, Nova Scotia Oral Decision: October 28, 2015 Written Release of Decision: November 10, 2015 [Edited for grammar, punctuation and readability] Counsel: David Coles, Q.C., and Megan Russell for the Plaintiff Duane Eddy for the Defendants By the Court: Introduction [1] Ms. Doucette filed an action against the defendants on February 8, 2013 alleging that in September 2012, Mr. Grimes had committed the torts of defamation and breach of privacy in relation to her while acting in his position as an area firearms officer tasked with determining whether Ms. Doucette was eligible under Section 5 of the Firearms Act to hold a licence. [2] The defendants filed their Notice of Defence on April 10, 2013. In March 2015, Ms. Doucette filed a request for date assignment conference, which was held May 1, 2015. At that time, a settlement conference was set down for September 10, 2015, as was a finish date of August 21, 2015 and a trial readiness conference date of September 18, 2015. The trial is set to commence November 23 – 30, 2015. [3] Between August 27, 2015 and September 1, 2015, the parties exchanged a number of requests for admissions, and many admissions were made in response. [4] On October 13, 2015, the defendants filed the notice of motion herein pursuant to Rule 83.01(2), moving for an order granting amendments to the Notice of Defence and Statement of Defence. In essence, the defendants admit liability, and remove from their pleading all paragraphs to that end, save matters regarding damages which remain in dispute. [5] Ms. Doucette, in her written argument and affidavit, asks the court to address not only costs of this motion, claimed to be on the basis of a solicitor-client as a result of unnecessary throwaway costs which she claims as a result of unreasonable positions taken by the defendants, but also costs of the proceeding insofar as she argues the defendants are withdrawing their defence pursuant to Rule 9.05 and thereby must, unless a judge orders otherwise, pay the costs of the opposing party pursuant to Rule 9.06. [6] Ms. Doucette relies on the following bases for her claim for solicitor-client costs, even if the defendants are successful on their motion: the defendants have made new pleadings at the proposed paras. 18 and 19 of their Statement of Defence (which I observe appear to favour the plaintiff as further admissions of breaches of her privacy); unfounded allegations of criminality will often lead to solicitor-client cost awards; the lateness of the defendants’ admission of liability should be seen as an abuse of process resulting in greater litigation costs to the plaintiff, as liability, on any reasonable investigation should never have been in issue (albeit I observe that in oral argument Mr. Coles acknowledged that the defendants may reasonably have not admitted liability until at least the end of discoveries); the defendants’ conduct is evidence from which bad faith ought to be inferred by the court. Analysis Preliminary issue [7] Ms. Doucette took issue with the defendants’ counsel, including in his affidavit at paras. 12 and 23, references to settlement positions of the parties regarding this matter. Mr. Eddy, counsel for the defendants, initially suggested that they demonstrated rebuttal evidence to the “bad faith” arguments made by Ms. Doucette. More recently, the defendants have consented to the striking and redaction of any references to settlement positions. [8] In my view, it would be a better practice, before the filing of affidavits, to advise opposing counsel of the intention to include in an affidavit or written argument/correspondence, such presumptively contentious references to settlement positions, so that counsel will be aware of their respective positions beforehand. [9] It is appropriate here to redact the entirety of paras. 12 and 23, of Mr. Eddy’s affidavit sworn October 13, 2015, and I order that this be done by the prothonotary, and an un-redacted copy be maintained in a sealed envelope in the file marked “confidential settlement offers”, whereas the original redacted affidavit will remain on file. Also, to be redacted in similar fashion, are the references at pages 2 and 4 of the defendants’ brief dated October 13, 2015. Amendments to pleadings [10] Rule 83.01 permits a judge to approve an amendment to a court document. It is not disputed that the test for leave to amend is as follows: leave will be granted unless the opposing party demonstrates that the applicant is acting in bad faith or that, should the amendment be allowed, the other party will suffer prejudice which cannot be compensated in costs. Bad Faith [11] A review of the record in the evidence herein does not support a conclusion that the defendants have acted in “bad faith”. It is unclear whether Mr. Grimes has a precise independent recollection of all of the statements Ms. Doucette attributes to him. The record also does suggest that the defendants lately came to the conclusion that their position on liability was not sustainable. It may be that that position could have been earlier determined and communicated to the plaintiff. However, the timing herein cannot be said to be deliberate in the sense of attempting to gain an advantage or prejudice the plaintiff. I do note that as early as April 2014, Mr. Eddy broached that subject and certainly gave the impression that the defendants were very serious about dealing with the matter as a trial on damages only. [12] Ms. Doucette suggests that the defendants’ “amendments”, which delete the entirety of their defence against liability from their initial pleadings, is not a “true amendment”, but rather a “motion to withdraw their defence” under Rule 9.05. [13] No authority regarding this argument was drawn to the court’s attention. I am unconvinced that Rule 9.05(2) and 9.06 were intended to apply to the situation at hand. Certainly, it has been presented, and could also be seen as an “amendment” to the defendants’ pleadings. Is there then serious prejudice which cannot be compensated in costs, should the amendments be permitted? [14] Ms. Doucette has not provided an answer to this precise question. [15] Her focus has been on what she says is the abusive and unreasonable position taken by the defendants, given that Mr. Grimes “always” knew his statements were untrue, and the consequent defences pled, now sought to be removed from the pleadings, should “never” have been pled, according to the plaintiff’s counsel. [16] At page 8 of 11 in her brief, Ms. Doucette states: As a result of the defences outlined in the original Statement of Defence, the plaintiff was forced to exchange documents and undergo discovery examinations on the basis of the defence of justification, while the Province has not made any inquiry into defending Grimes’ actions to ensure that they were, indeed, justified. [17] And also at page 7 of their brief: The defendants have not filed any affidavits of the parties; they have only filed a solicitor’s affidavit. The solicitor’s affidavit is silent on why the Statement of Defence is being amended at this time. The only explanation provided for the delay in amending is that the defendants needed to participate in discovery examinations. [18] I find that Ms. Doucette has not satisfied the court that should the amendments be granted she would suffer serious prejudice which cannot be compensated in costs. Conclusion [19] I am prepared to grant leave to amend the Notice of Defence as contained in Schedule “A” of the draft order on file. I observe here that the proper practice is to include as a schedule to the notice of motion, the proposed amended court document. The proposed amendments are an integral part of the motion document, in my view. Costs [20] Rules 77.02 and 77.03(4) permit the court to award party and party costs of a motion that doesn’t result in final determination of the proceeding in any manner that will do justice between the parties. Rule 77.05 suggests the provisions of Tariff C should presumptively apply. I see no reason to depart from the usual motion costs approach. [21] As Justice Farrar stated in Frothingham v. Perez, 2011 NSCA 59: 48 The respondents were the successful litigants on the motion. Generally, costs will be awarded to the successful party. Why this is so was addressed by Saunders, J. (as he then was) in Landymore v. Hardy, (1992), 112 N.S.R. (2d) 410: [17] Costs are intended to reward success. Their deprivation will also penalize the unsuccessful litigant. One recognizes the link between the rising cost of litigation and the adequacy of recoverable expenses. Parties who sue one another do so at their peril. Failure carries a cost. There are good reasons for this approach. Doubtful actions may be postponed for a sober second thought. Frivolous actions should be abandoned. Settlement is encouraged. ... [22] Moreover, the object of our Civil Procedure Rules is stated to be: 1.01 These rules are for the just, speedy and inexpensive determination of every proceeding. [23] The defendants have been the successful party on this motion. The motion was not complex, nor were there factors that, at this time, justify a costs award reduction or increase. [24] Although the defendants may have come lately to admitting liability herein, the plaintiff may be criticized for not simply agreeing to the proposed amendments. [25] To be clear, however, I do not intend to preclude the plaintiff from revisiting its position herein for costs on a solicitor-client basis for the argued misconduct of the defendants herein. The trial judge remains able to address this issue under Rule 77.07. [26] I order as payable forth-with, costs, in any event of the cause, in favour of the defendants, in the amount of $250, inclusive. Rosinski, J.