Halifax Port ILA/HEA Pension Plan v. Amon

Halifax Port ILA/HEA Pension Plan v. Amon Court Supreme Court Date 2009-01-05 Citation 2009 NSSC 3 Docket SH 285135 Judge/Registrar/Adjudicator Kennedy, Joseph P. (Honourable Chief Justice) (SC) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Halifax Port ILA/HEA Pension Plan v. Amon, 2009 NSSC 3 Date: 20090105 Docket: S.H. No. 285135 Registry: Halifax Between: MEMBERS OF THE BOARD OF TRUSTEES OF THE HALIFAX PORT I.L.A./H.E.A. PENSION PLAN Applicants and BARBARA AMON, Guardian of the property of MALLORY CATHERINE AMON, a minor, and KIM CULLYMORE Respondents Judge: Chief Justice Joseph P. Kennedy Written Decision on costs: January 5, 2009 Counsel: Jasmine J. Walsh for the Applicants B. William Piercey, Q.C., for the Respondent, Barbara Amon Steven Zatzman, Q.C., for the Respondent, Kim Cullymore By the Court: [1] The question of costs remains to be decided in this matter. [2] Before me, the Board sought directions as to the proper disposition of a pre-retirement death benefit payable upon the death of a member, Michael Rose. The benefit was claimed by Barbara Amon on behalf of her minor daughter, Mallory Amon. Michael Rose was Mallory’s father. [3] Also claiming the benefit was Kim Cullymore, who claimed to be Michael Rose’s common-law partner at the time of his death. [4] I determined otherwise, that Kim Cullymore was not the common-law partner of Rose when he died. That means that the benefit is payable to the daughter. [5] The Board’s position on costs is that: 7. As set out in the Board of Trustees’ initial submission, where the Applicant in a proceeding such as this one conducts itself properly and in the interest of efficiently resolving the contest between the claimants, costs should be awarded in the applicant’s favour on a solicitor-client basis. 8. In this particular matter, the Board of Trustees urges this result as the costs of its participation herein will otherwise be borne by the balance of the beneficiaries of the Plan who are not themselves responsible for their accrual. 9. The Board of Trustees submits that costs should be borne, instead, by the death benefit of Michael Rose and requests such an order. 10. Rule 63.12 of the Civil Procedure Rules provides support for this submission, stating: 63.12 (1) Where a person is a party in the capacity of trustee, personal representative or mortgagee, he shall, unless the court otherwise orders, be entitled to costs, insofar as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representative, or out of the mortgaged property. 11. In Royal Trust Co. v. Burnac Corp. [1993] N.S.J. No. 332 (S.C.) (Reference Applicant’s Pre-Hearing Brief, Tab 4) Tidman J. stated at paragraph 14: I can find no fault with the manner in which Royal attempted to resolve this issue and thus as is usual in interpleader cases of this nature I award Royal its costs on a solicitor/client basis. The claimants shall each pay one-half of Royal’s costs. The claimants’ costs shall be in the cause which costs shall include costs paid to Royal. 12. In Royal Trust Co., Tidman J. made this costs award coincidentally with an order that the dispute be set over for a trial between the claimants. He ordered that the costs be shared equally between the claimants, subject to their ultimate determination in the cause. 13. Following this reasoning, and as the dispute between the claimants has been resolved by your January 24 oral decision, the Board of Trustees submits that the ultimate responsibility for the costs of this issue should be borne as your Lordship may direct as between the claimants, Barbara Amon and Kim Cullymore. [6] I agree with the Board’s submission. [7] That leaves costs to be determined as between the claimants Barbara Amon, on behalf of her daughter, and Kim Cullymore. [8] Counsel for Amon submits that solicitor-client costs in favour of both the Board and Amon should be awarded against Cullymore because, he says, Cullymore’s claim was shown to be fraudulent. [9] What I said in my decision was that as to evidence produced by Cullymore to the effect that a common-law relationship existed between her and Rose at the time of his death, and I quote: “I do not find her to be creditable on this issue”. [10] When considering the question of solicitor-client costs, I look to the determination of McLaughlin J. (as she then was) in Young v. Young (1993) 108 D.L.R. (4th) 193 S.C.C. at 283: ... Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of the one of the parties. Accordingly, the fact that an application has little merit is no basis for awarding solicitor-client costs; ... [11] The limited grounds on which solicitor-client costs can properly be entertained are clearly established. In MacDonnell v. M & M Developments Ltd. et al. (1997), 164 N.S.R. (2d) 81 at p. 97, Saunders J. observed: [91] The question then becomes whether costs ought to be awarded on a party and party or solicitor and client basis? I have studied the cases to which I was referred by counsel. It is clear from such cases as Roose, supra and Brown v. Metropolitan Authority et al. (1996), 150 N.S.R. (2d) 43; 436 A.P.R. 43 (C.A.) that in Nova Scotia it must be a “rare and exceptional circumstance” before solicitor and client costs are awarded. In Roose, supra, solicitor and client costs were not awarded even though punitive damages were. A similar result arose in Flame Bar-B-Q Ltd. v. Hoar Estate (1979), 27 N.B.R. (2d) 271; 60 A.P.R. 271; 106 D.L.R. (3d) 438 (C.A.). It would appear from Warner v. Arsenault (1982), 53 N.S.R. (2d) 146; 138 A.P.R. 146 (C.A.) and Brown, supra, that even conduct shown to be “reprehensible” is not enough to justify an award of costs on a solicitor and client basis. From my reading of the cases in order to justify an award of solicitor and client costs there must be proof tantamount to fraud or an abuse of process. Unless or until the observations of Pace, J.A., in Warner, supra, are varied or refined I am bound to follow them. [12] While I concluded that Cullymore was not creditable when she testified to the quality of her relationship with Rose in the months before his death, I do not consider her actions to constitute such “reprehensible, scandalous or outrageous conduct” as to justify the unusual award of solicitor-client costs. [13] In fact, Cullymore takes the position that I should not award any costs against her at all. She suggests that the issue as to who was a survivor of Rose was one that had to be sorted out and, although she was not found to be entitled, her claim was based on what had once been a longstanding common-law relationship. [14] As indicated, I concluded that her claim had no merit and that she was not creditable when promoting her claim before this Court. There would have been no “sorting out” to be required had this bad claim not been made. [15] I find that she was the reason that this application was necessary. [16] Cullymore further submits that the award of costs against her will create economic hardships that will be harmful for both her and her family. [17] Impecuniosity is not generally a defence against responsibility for costs. Although the Court has absolute discretion, it must be exercised judicially and this is not a case that would justify the exception to the norm. [18] The claimant Cullymore’s bogus claim caused this application and she will be responsible for the costs. [19] The taxed costs of both the Board and the claimant Amon shall be borne by the claimant Cullymore. Chief Justice Joseph P. Kennedy