Brooks v. Finlayson Estate

Brooks v. Finlayson Estate Court Small Claims Court Date 2009-01-27 Citation 2009 NSSM 1 Docket SCCH 304766 Judge/Registrar/Adjudicator O'Hara, Michael (Adjudicator) Document Type Decision Decision Content IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Brooks v. Finlayson Estate, 2009 NSSM 1 2008 Claim: SCCH 304766 BETWEEN: MARGARET ELAINE BROOKS APPLICANT - and - ESTATE OF MARGARET FINLAYSON RESPONDENT Appearances: Applicant - William L. Ryan, Q.C. Respondent - Not Present Hearing Date: December 9, 2008 DECISION [1] This taxation came before the Court on December 9, 2008. As noted, Mr. Ryan was present for the Applicant. [2] The Respondent appears to have been served through Harry Munro, Q.C., who acted as counsel for the Respondent in litigation involving this estate and which resulted in the costs award which is the subject of this present proceeding (see Finlayson Estate (Re), No. 14525 (286459), Scanlan, J., April 22, 2008 ; March 14, 2008 (orally). 2008 NSSC 120; S574/13). Although apparently aware of this hearing Mr. Munro was not present and I was advised that he was applying in the Supreme Court to be removed as solicitor of record. [3] Melinda MacLean, Q.C., is proctor for the Respondent estate and acted as counsel in other litigation involving this estate (see Finlayson Estate (Re), Probate No. 14525, LeBlanc, J., February 28, 2008 ; April 27, 2007 (orally). 268 N.S.R. (2d) 5; 2008 NSSC 58; S579/8). [4] By letter dated December 9, 2009, Ms. MacLean advised the Court that Mr. Finlayson (Executor of the Estate) does not take any position with respect to the taxation and she therefore had no instructions to be in attendance. In the result, the matter came forward as an unopposed taxation. [5] While unopposed, the Court must still be satisfied as to the reasonableness of the accounts. Taxations do not proceed by way of default order. [6] In the Notice of Taxation, the Applicant seeks approval of the following: Throw-away costs following an aborted trial $ 8, 512.00 Party-Party costs of trial 53,750.00 Disbursements 3,082.62 Total $ 65,344.62 [7] I indicated to Mr. Ryan at the hearing that I wished to further review the filed Affidavit and case law, which I had only received that evening. At my request, he indicated that he would respond to any further questions that might arise and which I would forward in writing. [8] Following that December 9th hearing, I reviewed the matter and concluded that there was a substantial issue of whether or not the Small Claims Court, in its capacity as a taxing officer, has legal jurisdiction to tax or affix costs on a party-party basis. As a result, I wrote to Mr. Ryan by faxed letter dated December 22, 2008, which I also copied to Mr. Munro and to Ms. MacLean. In that letter, I stated, in part: After a not insignificant amount of review of this matter, I am questioning whether I have jurisdiction to “tax” or affix costs on a party-party basis. On raising this, I am fully aware that the Supreme Court Order of July 8, 2008, states that “...Elaine Brooks shall have her costs against the Applicant, to either be agreed upon by the parties or to be taxed.” However, the Order is silent as to by whom the taxation is to be done. I would consider that this Order for costs contemplates party-party costs. While I do not have any specific authority in support of this, I would think that where an award of costs is silent the presumption is that it is party-party as opposed to solicitor-client costs. Party-party costs are dealt with in Civil Procedure Rule 63-Part I, which comprises Rules 63.01-63.15. A review of those Rules indicates that a taxing officer has express jurisdiction to set costs where there has been a settlement in a proceeding (under Rule 63.10) or as to disbursements (under Rule 63.10A). Beyond that, I can find no authority for a taxing officer to set costs under Part I of Rule 63. Further, if one looks at the main rule dealing with party-party costs (Rule 63.04), it is clear that it is to be the court which fixes the costs and determines the “amount involved” for doing so. In this context “court” would clearly mean the Supreme Court. You will also note that in Tariff A it is the trial judge that is to fix the “length of trial”. While this taxation has not been contested, I must obviously be satisfied that I have jurisdiction to proceed in this basis. I might add that I can find no case on the Law News online database where the Small Claims Court (acting as a taxing master)has fixed party-party costs arising out of a Supreme Court trial. Before proceeding further, I would ask for your views on this threshold jurisdictional issue. Following that, and depending on whether or not I conclude that I can proceed, I may have other questions that would arise as part of the exercise of setting the costs. [9] By letter dated January 15, 2009, Mr. Ryan responded. As to the specific inquiry that I raised with respect to the Rules and the authority of the taxing master he states: We have reviewed the rules and in our humble opinion, you as Taxing Master have jurisdiction to deal with this matter and indeed, you are the proper person before whom this taxation should be brought. [10] With respect, I am not satisfied by that assertion and my conclusion after a careful review of the Rules is that I do not have jurisdiction to set party-party costs. My analysis for this conclusion follows and, it is to be noted, it is based on the previous Civil Procedure Rules. The “new” Civil Procedure Rules which came into force in January 1, 2009, appear to be substantively similar with respect to the Cost Rule, but I have not specifically attempted to apply those Rules since they do not apply to this present matter. [11] I would first observe that it is unquestionable that the Small Claims Court has authority as a taxing officer or taxing master. This flows from Section 9A(1) of the Nova Scotia Small Claims Court Act, R.S.N.S. 1989, c. 430 which states: An adjudicator has all the powers that were exercised by taxing masters appointed pursuant to the Taxing Masters Act immediately before the repeal of that Act, and may carry out any taxation of fees, costs, charges or disbursements that a taxing master had jurisdiction to perform pursuant to any enactment or rule. Further, Civil Procedure Rule 1.05(ab) of the Nova Scotia Civil Procedure Rules states: 1.05 In these Rules, unless the context otherwise requires, (ab) “taxing officer” means a taxing master or a judge of the supreme court, or an adjudicator of the small claims court for accounts claimed in his or her court within the court’s jurisdiction as provided by the Barristers’ and Solicitors’ Act. [12] The question then is what authority does a taxing officer or taxing master have with respect to party-party costs awarded in the Supreme Court? The answer to this must lie in the Civil Procedure Costs Rules. I turn then to Civil Procedure Rule 63 which contains five parts , as follows: Part I - Party and Party Costs: General (Rules 63.01-63.15) Part II - Solicitor and Client Costs; General (Rules 63.16 -63.26) Part III - Taxation of Costs (Rules 63.27A-63.36) Part IV -Payment of Costs (Rule 63.37) Part V - Appeals from Taxation (Rules 63.37A-63.41) [13] Much like interpreting a statute, I would understand that interpreting the Civil Procedure Rules requires reading the particular Rules in the context of the entire Rule to properly interpret each of the Rules. The principal Rule regarding party and party costs is Rule 63.04 (in Part I of Rule 63) which reads: Subject to Rule 63.06 and 63.10, unless the court otherwise, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the “amount involved” shall be determined, for the purpose of the Tariffs, by the court. [Emphasis Supplied] [14] Rule 63.04(2) goes on to state that: (2) In fixing costs, the court may also consider [(a)-(j) sets out the various other factors which the court may consider] [Emphasis Supplied] [15] I also refer to Rule 63.27A (contained in Part III dealing with taxation of costs): 63.27A Unless the court otherwise orders, this Part does not apply with respect to a determination of costs pursuant to Rule 63.04 or 63.06. [16] As I read these Rules, it appears to me that the overall intention was that party and party costs would be set by the court and that solicitor and client costs and the taxation thereof would be dealt with by taxing officers. This makes a lot of sense from a practical and pragmatic viewpoint as well. After all, it is the court that hears a given civil case and is, therefore, in the best position to set the “amount involved” for purposes of the Tariff and, where appropriate, consider and apply the other factors set out in Rule 63.04(2). [17] On the other hand, the taxation of solicitor and client costs appears to be more suitably left to the taxing officers as has traditionally been the case. This is a system that has apparently worked well over the years. I might also add that the distinction and divide between party and party costs on the one hand and solicitor and client costs on the other is, if not necessarily well understood by the lay public, certainly very well understood by the legal profession. It would seem to be conducive to the administration of the overall costs system and consistent with the clear delineation between the two to have them set or affixed by a different set of decision-makers in the system. [18] As has already been stated, under Rule 63.04(1) it is the court, i.e. the Supreme Court which fixes the costs between the parties and determines the “amount involved”. No express, or implied, authority is granted to a taxing officer in Rule 63.04 or otherwise in Part I to set party-party costs. [19] I appreciate that both Rule 63.04 and 63.27A include the proviso “unless the court otherwise orders” and the argument may be made that the order of Justice Scanlon constitutes the court otherwise ordering. That argument (and I pause to state that such was not put forward by counsel), I would, in any event, reject. We are dealing here with the issue of the authority or jurisdiction of the taxing master to award party-party costs, a jurisdiction which does not, on the face of the Rules, exist. It would seem to follow that should a Supreme Court Judge, whose direction would clearly be binding on a taxing officer, seek to impart the taxing master with such a jurisdiction, it should be manifestly clear on the face of the order. Such is not the case here. [20] There is the further issue of whether, as a matter of law, the phrase “...unless the court otherwise orders” can be viewed as sufficiently broad to give a taxing officer authority that he or she does not appear to otherwise possess. I have some significant doubt that the language can be stretched that far but I have no authoritative statement one way or another on this point. Assuming the language would permit such an interpretation, then, as already stated, I would expect that the order of the Supreme Court Judge would clearly spell out that the setting of the party and party costs was to be performed by a taxing master pursuant to the provision containing the language “unless the court otherwise orders”. [21] I note that in Rule 63.10 the taxing officer has jurisdiction to set the “amount involved” for the purpose of a Tariff where a proceeding is settled. That is a specific instance of where the Rules grant jurisdiction to the taxing officer to exercise his or her authority under Part I. [22] Another instance is Rule 63.10A where the taxing officer has clear authority to determine disbursements. Again, this is a specific instance of Part I granting authority to a taxing officer. [23] On my review of the Rules, there is no other instance of the taxing officer having authority under Part I of Rule 63 to set party-party costs. [24] For these reasons, I conclude that the taxing officer does not have authority to set or affix (or “tax”) party-party costs under Rule 63.04 of the Civil Procedure Rules. [25] Before closing, I offer the following observation. In this decision I have used the terms “tax”, “set”, and “affix” synonymously. I have my doubts that they are equivalent terms in the law of costs. Further, it may well be prudent to confine the use of the word “tax” to solicitor or client costs and disbursements, and not to the area of party-party costs, and thereby possibly avoid some of the lack of certainty and issues that seem to have arisen here. [26] As noted above, I consider that in my capacity as taxing officer I do have authority to determine disbursements (Rule 63.10A). I have reviewed the disbursements presented here, along with the useful case law which has been supplied with the original submission. I would allow the disbursements in the amount claimed. Should the Applicant wish to have that embodied in an Order, otherwise consistent with this decision, I ask that an appropriate form of Order be submitted to me. DATED at Halifax, Nova Scotia, this 27th day of January, 2009. Michael J. O’Hara Adjudicator