Munroe v. Morgan Industrial Contracting

Munroe v. Morgan Industrial Contracting Court Court of Appeal Date 2004-04-01 Citation 2004 NSCA 49 Docket CA 204336 Judge/Registrar/Adjudicator Oland, Linda L. (Honourable Justice) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Munroe v. Morgan Industrial Contracting, 2004 NSCA 49 Date: 20040401 Docket: CA 204336 Registry: Halifax Between: Lyndel Munroe Appellant/Respondent v. Morgan Industrial Contracting, a sole proprietorship and David Hanson Respondents /Applicants Judge: Justice Linda Lee Oland Application Heard: March 25, 2004, in Halifax, Nova Scotia, In Chambers Held: Application granted. Counsel: Lyndel Munroe, self-represented appellant/respondent Christa M. Hellstrom, for the respondents/applicants Decision: [1] This is an application pursuant to Civil Procedure Rules 62.13 and 63.14 for an order requiring the respondent to provide for security for costs on his appeal and to include a transcript of the evidence at trial in the appeal books. The applicants also seek a date for the hearing of the appeal. [2] The respondent to this application is appealing the decision of MacLellan, J. of the Nova Scotia Supreme Court dated June 18, 2003 which dismissed his claim for damages arising from a fall while working for the applicants. Although he filed a notice of appeal within the appeal period, the respondent did not proceed further until the Registrar brought a motion in November 2003 to dismiss his appeal for failure to perfect. An order of a Chambers judge of this court gave him until December 17, 2003 to perfect his appeal and certain materials were filed before that deadline. [3] Justice MacLellan’s June 18, 2003 decision did not deal with costs. After providing the parties with an opportunity to make submissions in that regard, the trial judge awarded the applicants costs of $15,912.50 and disbursements of $17,626.30. No appeal from that costs decision dated December 8, 2003 has been filed. No payment whatsoever has yet been made by the respondent against those costs. [4] I am satisfied that the respondent received notice of this application in accordance with the Civil Procedure Rules. The applicants filed application documents on March 16, 2004. They have also filed an affidavit of service in which the deponent swore that on March 19, 2004 he left copies of the documents on the door at an address which matches that set out in the respondent’s notice of appeal. Although he stated in Chambers that they were not received until March 23rd, the respondent confirmed that that is his current address and that he found application documents on his door step. [5] Security for costs on appeal are provided for by Civil Procedure Rule 62.13 which reads: 62.13. (1) A Judge on application of a party to an appeal may at any time order security for the costs of appeal to be given as he deems just. (2) If a party fails to give security for costs when ordered, a Judge on application may dismiss or allow the appeal, as the case may require. The discretion given to a judge under this Rule to order security “as he deems just” is not to be exercised in favour of an applicant unless special circumstances exist for so doing: Frost v. Herman (1976), 18 N.S.R. (2d) 167. [6] Having considered the submissions of the applicants and of the respondent, I would exercise my discretion in this case to order security for costs. The failure of an appellant to pay or make contribution to a cost award has been considered as a “special circumstance” in support of such an order: Arnoldin Construction & Forms Ltd. v. Alta Surety Company, [1994] N.S.J. No. 462 and Smith’s Field Development Ltd. v. Campbell, [2001] N.S.J. 333. The respondent appears determined not to make any payment towards the costs award. While the costs decision was pending, he wrote to counsel for the applicants in part as follows: . . . Some times I wonder if you know the war is over or if you really know you are in another one, which you are . . . I have appealed the decision and like I said I will take it to the end to get justice I will drowned (sic) in my own blood before you get one penny, I will be seeking legal representation to handle the appeal, I will tell you I am sure this case will make the head lines before it is over,, Prior to trial, he had clearly set out his views towards the applicants, their lawyers, and his claim in correspondence which included the following passage which is quoted verbatim: “. . . I look at you as being the devil and you represent the devel . . . . i could be repersented for all you know,If i have to fight you in court my self i will and if anything happenings to me my family will finished what i have started, I will tell you i will fight you to the end . . .” [7] It appears from communications such as these that, whether or not he is able to make any contribution towards the trial costs, the respondent would refuse to do so. In addition, it seems that he is adamant in his intention to take his claim through the entirety of whatever appeal processes are available. The respondent is self-represented and pursuing this appeal without incurring legal fees. There was no affidavit evidence before me which set out any details as to his financial situation. In Chambers, he stated that he has no money to hire a lawyer and that his life has been ruined and made very stressful by this litigation. [8] Even if I were to assume that he is self-represented and has not paid any portion of the trial costs because he is impecunious, that financial situation of itself does not preclude an order for security for costs. In regard to the previous Rule on such security, MacKeigan, C.J.N.S. stated in L.E. Powell & Co. Ltd. v. Canadian National Railway Co. et al. (No. 2) (1975), 11 N.S.R. (2d) 532 (N.S.C.A.), as follows: By Rule 62.30, supra, this Court or a judge thereof, like the English courts, may now order security for costs on appeal in "special circumstances". The basic principle applied by the English courts in cases like the present has been set forth by Bowen, L.J., in Cowell v. Taylor (1885), 31 C.D. 34 (C.A.) at p.38: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. There is also an exception introduced in order to prevent abuse, that if an insolvent sues as nominal plaintiff for the benefit of somebody else, he must give security. In that case the nominal plaintiff is a mere shadow. The following comments by Bateman, J. in Smith’s Field Development Ltd. v. Campbell, supra, are also worth noting: [40] The appellants are able to pursue this appeal, as they have the litigation before the trial court, principally without concern for legal fees. Should the appeal fail, the only risk to the appellants, apart from their own disbursements, is an order for costs, which will inevitably go unanswered. As Pugsley J.A. said in Arnoldin Construction, supra: [9] ... (1) ... [the respondent] is entitled to a substantial sum for its taxed costs of successfully defending a trial. To permit the company to have a "free ride" without posting security, renders an[d] injustice to Alta. Alta's rights must also be considered... . [9] Where success on appeal is readily apparent, a court may use the merits to forestall an order for security for costs which would otherwise be appropriate: see Smith’s Field Development Ltd., supra at ¶ 17. In essence, the grounds set out in the respondent’s notice of appeal allege that the trial judge failed to assess credibility properly and exhibited bias. It is apparent from a review of the decision that the respondent’s credibility was an issue throughout the trial and that his evidence in various aspects was rejected. Findings of credibility are generally a matter for the trier of fact and not for the court of appeal. In my view, the nature of the appeal and the findings made by the trial judge do not establish reasons presented by the appeal which would limit this court from ordering security for costs. [10] Having considered the respondent’s failure to pay or make any contribution to the costs award rendered following trial, the fact that he has had the benefit of a trial, his pursuit of the appeal without concern for legal costs, and the merits or nature of his appeal, and having heard counsel for the applicants and the respondent, I would grant the application for an order for security for costs. [11] Security for costs on appeal are generally in an amount somewhat less than the cost award anticipated on the appeal: Crouse v. Crouse, [2002] N.S.J. No. 31 at ¶ 15. Here the trial costs awarded were $15,912.50 and costs on appeal are often fixed at 40% of the award at trial. I would order security for costs on the appeal in the amount of $4000.00 no later than 4 p.m. on April 21, 2004. If the respondent fails to post such security by that time, the applicants may apply to a judge of this court, without notice to the respondent, for an order dismissing the appeal without costs. [12] I accept the respondent’s explanation that the material he filed as appeal books did not include a copy of the transcript at trial because he did not appreciate that the transcript is a requirement. I would order that no later than 4:00 p.m. on April 23, 2004 he is to advise the court in writing, with a copy to counsel for the applicants, when the transcript will be available for inclusion in the materials he has already filed. In that regard, it will be necessary for him to contact the court where the trial was heard in order to determine when the tapes of the hearing can be available and then to proceed to ascertain the costs of transcription and when that can be completed. [13] Since at this point it cannot be known when the transcript of the trial will be available and the appeal books complete, I would dismiss the application to set a date for the hearing of the appeal and deadlines for the filing of facta. Once the date the transcript can be had is known, the respondent can arrange through the Registrar to set a date for the hearing during telephone Chambers. [14] I would order costs of this application in the amount of $500. payable by the respondent to the applicants forthwith and in any event of the appeal. Oland, J.A.