Waters v. Michie

2022 BCSC 818 Waters v. Michie

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Waters v. Michie, 2022 BCSC 818 Date: 20220310 Docket: D109625 Registry: Vancouver Between: Jodi Lynn Waters Claimant And James Alexander Michie and Dawn Lanelle Michie Respondents Before: The Honourable Justice Matthews On appeal from: A decision of a Master (as Registrar) of the Supreme Court of British Columbia dated September 25, 2019 (2019 BCSC 1620). Oral Reasons on Appeal of a Master's Assessment of Costs In Chambers Counsel for the Claimant (by video): J.R. Shewfelt Counsel for the Respondents (by video): G.A. Hooper Place and Date of Hearing: Vancouver, B.C. March 10, 2022 Place and Date of Ruling: Vancouver, B.C. March 10, 2022 Introduction [1] The claimant, Jodi Lynn Waters, appeals the order of Master Muir sitting as a registrar, indexed at 2019 BCSC 1620, in which Master Muir determined that the Court was functus regarding the costs of 2003 and 2012 interlocutory applications and declared that Ms. Waters was not entitled to have those costs further assessed. [2] The issue on this appeal is whether costs of interlocutory applications, which were included on the bill of costs assessed before Registrar Cameron and for which a certificate of costs was entered, can be assessed on a separate bill of costs under a second appointment. The answer is no. [3] The principle of finality animates the answer. I have concluded

that Master Muir was correct when she determined that Registrar Cameron's decision to not assess costs for those applications, a decision upheld on appeal, rendered the court functus. If it is necessary to resort to any of the doctrines under the umbrella of res judicata, I consider the certificate of costs to be a final order with regard to all of the constituent tariff items claimed in that bill after an assessment on the merits of the bill of costs. [4] I gave these reasons orally. I have edited them without changing the substance. Background [5] I am the third judicial presider (at least) to describe the history of this proceeding as tortured. The continuation of this proceeding through this appeal is an affront to the principles of proportionality and finality in litigation. In 2012, Justice Humphries also described a lack of proportionality in Ms. Waters' approach to the trial that Justice Humphries heard and which was the precursor to the order of costs. [6] The background is set out in the decisions of Justice Humphries indexed at 2012 BCSC 639, 2012 BCSC 1942, and 2015 BCSC 196; the decision of Master Muir indexed at 2019 BCSC 1620; the decision of Justice Crossin on the appeal from the certificate of costs entered by Registrar Cameron indexed at 2018 BCSC 1206; and the Court of Appeal's decision upholding Justice Crossin's decision indexed 2019 BCSC 218. [7] In

summary, Ms. Waters and Mr. Michie had a three‑year marriage. In 1996, Ms. Waters filed a petition for divorce in New Westminster. Those proceedings were transferred to Vancouver and were converted from a petition to a proceeding on the trial list. [8] The parties reached a settlement. Apparently, there were minutes of settlement prepared. After the settlement, disputes continued to arise, including pertaining to parenting issues. In 2003, the parties did not agree as to where their three children were going to school. Mr. Michie brought an application which resulted in two of the orders that are the subject of the second bill of costs and the decision of Master Muir. I will refer to those as the "2003 orders". [9] The third order that is on the second bill of costs is a 2012 order pertaining to an application by Mr. Michie for special expenses. I understand that that application was not finally determined but rather was adjourned. I refer to that as the "2012 order". [10] In 2012 the case also proceeded to a trial before Justice Humphries that did not include a consideration of the issues in the 2003 orders or the 2012 order but had to do with child support. After a 14-day trial, Justice Humphries awarded $16,000 in child support arrears in favour of Ms. Waters. I understand that to be a relatively small fraction of what she was seeking in child support arrears. Mr. Michie has

paid the child support arrears. [11] Following the trial before Justice Humphries, the parties attended before her to argue costs. She ordered that the costs of the proceeding be in Ms. Waters' favour as ordinary costs, not special costs. That order was appealed to the Court of Appeal, which upheld the ordinary costs award. [12] At the Court of Appeal on the costs issue, Ms. Waters, in support of her position that special costs ought to have been awarded, asserted to the Court that an ordinary costs order would result in a costs award of approximately $80,000, whereas she asserted that she had spent $500,000 on the proceeding. The Court of Appeal upheld the ordinary costs award. [13] Despite her assertion that ordinary costs would be approximately $80,000, Ms. Waters presented a bill of costs totalling $168,000 to Registrar Sainty. Registrar Sainty suggested that the parties reappear before Justice Humphries to clarify what she meant by costs of the proceeding because the $168,000 bill of costs claimed costs for matters going back to 1996. Justice Humphries declined to issue directions but provided some observations which included that in the proceeding before her, she was only dealing with matters going back to 2004. [14] The costs assessment then came on before Master MacNaughton sitting as a registrar but was adjourned due to lack of time. In the course of the proceedings

that took place, Master MacNaughton observed that the bill of costs included claims for items and proceedings that were the subject of unentered orders and that could be problematic because of the law on whether a registrar could assess costs of an unentered order. [15] Despite Master MacNaughton's observations, several orders were still not entered by the time the matter came back on for assessment before Registrar Cameron. As will become important in these reasons and was stressed by the Court of Appeal, the bill of costs before Registrar Cameron had as its foundation a single order, that of Justice Humphries. I also observe that it was a single bill of costs that included many line items, including the 2003 orders and the 2012 order that are now the subject of a second bill of costs. [16] The 2003 orders and the 2012 order that are on the second bill of costs and are the subject of this appeal were, at the time the matter came before Master MacNaughton and before Registrar Cameron, among the unentered orders that I have referred to and claimed on the bill of costs Registrar Cameron assessed. Registrar Cameron declined to assess costs for all matters that were the subject of unentered orders, including the three in issue on this appeal. In doing so, he expressed his reasons and decisions in more than one way, including that there was "no basis to assess costs" on those items,

that Ms. Waters was not "entitled" to costs on the 2012 interlocutory application giving rise to the 2012 order, and that the costs claimed for the 2012 application were "not allowed". [17] On appeal of that aspect of Registrar Cameron's certificate of costs, Justice Crossin held that Registrar Cameron was entitled to assess them but did not err in declining to do so. Justice Crossin's decision was appealed but not on that issue. [18] Subsequent to the Court of Appeal decision upholding Justice Crossin's decision, Ms. Waters prepared a second bill of costs, including the tariff items of the two 2003 orders and the 2012 order. She sought to have it heard under a second appointment that came on for hearing before Master Muir. Mr. Michie raised the preliminary objection that Master Muir was functus as Registrar Cameron had dealt with those matters in his certificate of costs. Master Muir held: [26] The respondent argues that this assessment should be dismissed. He points out that the claimant was told that she should have the orders entered before the assessment hearing, but did not do so. When the costs of the proceeding were assessed and certified, the registrar refused to include the costs of these applications as the orders had not been entered. On appeal, Crossin J. held that the registrar could have assessed the costs of these orders, but had not erred in refusing to do so

and further appeal from that point was not taken. The respondent argues costs for these three applications have been adjudicated upon and the court is functus. [27] The claimant argues that having costs assessed does not mean that additional costs cannot be assessed later. She relies on Arthra Translations& Technical Services, Inc. v. Ontario, [1990] O.J. No. 1731 (S.C.-H.Ct.J.), which provides: In my view, the fact that only certain costs were assessed on the first attendance before the assessment officer does not mean that additional costs cannot be assessed at a later time. Certainly costs ordered by different order can be assessed later, and I see no reason why in this instance the cost of the action generally cannot be assessed at the present time. [28] That case was an assessment of costs of an application to dismiss, which were assessed first, followed by an assessment of costs of the action. [29] The Assessment Officer noted: He ordered that the plaintiff's motion be dismissed and that the defendant's motion be allowed and the action be dismissed. He then ordered that "the cost of this action and this motion are payable by the Plaintiff to the Defendant forthwith after assessment." The parties then appeared before assessment officer Eperon, and she dealt with a bill that contained items for the motion by the plaintiff heard June 26, and the cross motion by the

defendant, heard June 26. She assessed those costs. There was not presented to her, nor did she deal with the costs of the action generally, including such matters as pleadings, examinations etc. I am now presented with a bill which includes general costs of defending the action. I see nothing to prevent me from assessing those costs. It cannot be said that they have ever been assessed before because in fact they have never been presented to an assessment officer before. The practice of not assessing all costs at the same time is not to be encouraged and if the defendant's bill of costs had included anything for costs of the assessment I would have disallowed that item but in fact it does not contain such an item. I will therefore issue my certificate in two weeks having made certain deductions which are known to the parties. [Emphasis added by Master Muir.] [30] The claimant also argued that res judicata and the related doctrines of issue estoppel, abuse of process and the rule against collateral attack have no application to issues or causes that have not been decided on their merits. Several decisions were cited in support of this principle, including Langdon, Lacroix & Toews v. Martin, [1996] B.C.J. No. 690 (S.C.), where Mr. Justice Maczko held: [2] On February 1, 1996, the plaintiff brought on a taxation before a Registrar to tax a solicitor's bill against the defendants.

On the day of the taxation the plaintiff showed up late but by then the Master had dismissed the claim for want of prosecution. On February 9, 1996, the plaintiff took out a new appointment to tax and it was set for March 6, 1996. On that date the Registrar dismissed the plaintiff's taxation on the grounds that he had no jurisdiction to hear it because the matter was res judicata. This is an appeal from the March 6th decision. [5] I think the law is clear that res judicata will only operate where a cause has been heard on its merits or one of the other bases referred to in Judge Donald's decision. In this instance, counsel showed up late for a taxation and the action was dismissed. In my view this does not deprive the Master of jurisdiction to hear a subsequent action in the same cause. I therefore allow the appeal and refer the matter back to the Masters to hear the case on the merits. [31] The claimant argues that the registrar declined to assess the costs of the applications in issue on a technical point and hence those costs have not been assessed on their merits and therefore the court is not functus. [32] I disagree. The cases relied upon by the claimant are completely distinguishable. Here the costs of the entire proceeding have been assessed and certified. Here, there was a decision on the merits that included a consideration of these applications. As the orders were

not entered, costs for the applications were not allowed. The assessment was appealed on this very point and Crossin J. held Registrar Cameron had not erred. [33] As noted by Crossin, J. in the assessment appeal reasons at paras. 26 and 37, set out above, an assessment of costs is a summary process. It is trite law that, in a summary proceeding, a party is required to take all steps necessary to put forward their case in the best manner possible. [34] Thus, I agree that the court is functus in regards to the assessment of the costs of the proceeding ordered by Humphries J. The application of the respondent for dismissal of this further assessment is allowed. Analysis [19] The standard of review is not contentious. The standard of review of a registrar's decision is whether the decision is clearly wrong or the registrar erred in principle. Errors of principle are assessed on the standard of correctness: M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd., 2014 BCSC 1482 at paras. 22 to 26. [20] The issue that occupied a good deal of time during submissions was whether Master Muir applied the doctrine of functus, or issue estoppel, or cause of action estoppel. Ms. Waters submits that Master Muir erred because although she recognized that the res judicata umbrella and its constituent doctrines: issue estoppel, cause of action estoppel, abuse of process, and the rule against

collateral attack, do not apply unless there is a decision on the merits, she erred in determining that there was a decision on the merits. [21] Ms. Waters argued that when Master Muir stated that there was a decision on the merits that included a consideration of the applications that were the subject of the second bill of costs, and then said in the following paragraph that a party is required to take all steps necessary to put forward their case in the best manner possible, she was essentially concluding that because of the procedural flaw in not having entered orders, the issues of costs for these applications were decided on their merits. Ms. Waters submits that where a procedural flaw prevents a matter from being determined, it has not been decided on its merits. [22] Ms. Waters submits that the passages I have quoted above, including that the party is required to take all steps necessary to put forward their case, are only consistent with Master Muir applying cause of action estoppel, which cannot be applied where there is no decision on the merits. She argues that in addition to there being no decision on the merits, cause of action estoppel does not apply to costs assessments. Ms. Waters argues that issue estoppel does not embrace the concept of requiring a party to take all steps necessary to put forward their case in the best manner possible and so does not preclude

a party from fixing a procedural flaw and then having a subsequent costs assessment. [23] The doctrine of issue estoppel may have been applicable and may have animated Master Muir's decision. I am not persuaded that Master Muir applied cause of action estoppel. [24] In addition, Ms. Water's position is not consistent with the law pertaining to the doctrines that seek to prevent re-litigation of issues or causes of action, including issue estoppel, as described by the Supreme Court of Canada. In particular, in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at paras. 18-19, Justice Binnie said, in introductory comments to a review of the law of issue estoppel, as follows: 18 The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided. 19 Finality is thus a compelling consideration and

judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Where as here, its application bars the courthouse door against the appellant's $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted. [25] Later in the decision, Justice Binnie refers to cases that explain that issue estoppel only applies where an issue is directly before the court. I agree, but that does not preclude the notion that a party is required to put his best foot forward on that issue. It follows that issue estoppel is a doctrine that was open to Master Muir to apply. [26] In this case, Ms. Waters was required to come to the assessment with the items on her bill of costs in a form entitling her to have them assessed. The fact is that they were not in that form when she came to the assessment before Registrar Cameron, despite having been cautioned that she ought to address that issue in advance. As a result, she was disentitled to the amount she claimed for those items as part of a single bill of costs that was grounded in a single court order. The determination of the amount allowed pursuant to that single

bill of costs has been finally determined in Registrar Cameron's certificate of costs after an adjudication on the merits. Put another way, Justice Humphries awarded costs of the proceedings, and Registrar Cameron assessed the costs of the proceedings, including on those interlocutory applications. [27] Mr. Michie points to Rule 16-19(25) of the Supreme Court Family Rules which provides for an assessment to result in a certificate of costs following on the costs award. Mr. Michie submits this supports his position that the certificate of costs entered by Registrar Cameron is the final judgment that flows from Justice Humphries' costs award. [28] Ms. Waters argues that Rule 16‑19(25) cannot preclude more than one costs assessment in a proceeding, citing Arthra Translations & Technical Services, Inc. v. Ontario, [1990] O.J. No.

1731. Master Muir considered Arthra. I agree with her conclusion that Arthra is not analogous. That decision was about serial costs application where serial costs orders have been made, and the costs matters before the judicial presider had not previously been claimed on a bill of costs or adjudicated. That is not the situation in this case. [29] Ms. Waters argues that Registrar Cameron did not assess costs of the interlocutory proceedings giving rise to the 2003 orders and the 2012 order on their merits because there was no adjudication of the issues he would be bound to determine if he addressed them on their merits. On this point, Ms. Waters relies on AGF Canadian Equity Fund v. Transamerica Commercial Finance Corp. Canada, 1993 CanLII 8682 (ON SC), where Justice Borins of the Ontario Superior Court cited Black's Law Dictionary that provides a definition of a "decision on the merits" as follows: One rendered after argument and investigation, and when it is determined which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical or procedural point, or by default and without trial. A decision that was rendered on the basis of the evidence and facts introduced. Normally, a judgment based solely on some procedural error is not a judgment on the merits. The latter kind of judgment is often referred to as a "dismissal

without prejudice." A party who has received a judgment on the merits cannot bring the same suit again. A party whose case has been dismissed without prejudice can bring the same suit again so long as the procedural errors are corrected (i.e., cured) in the later action. [30] In my view, this definition and the concepts contained in it are not readily applicable to a bill of costs with many constituent lines of items claimed. In any event, substantive assessment clearly went into the assessment of the costs that resulted in the certificate that Registrar Cameron entered. His decision to not award costs for the interlocutory items now claimed in this second duplicative bill of costs was after and as a result of his consideration of the claim that rose above a "merely technical or procedural point". [31] As Justice Crossin recognized in his reasons on this aspect of Registrar Cameron's decision: [24] There is no doubt however there are significant practical concerns that militate against allowing parties to attend costs assessment hearings without entered orders. [25] First, the complexity and potential mischief of a costs assessment increases significantly when orders are not entered beforehand. When orders have not been settled and entered there is room for opposing counsel to dispute the successful party's entitlement, which forces the registrar to explore the particulars of

the various interlocutory applications at issue. This may well involve hearing evidence and argument, determining the relative success of the parties on each of the applications in issue, and then moving to the actual assessment of costs. This undermines the exercise that should be directed at expeditious and practical resolution. [26] The Registrar in this case captured the point as follows: "An assessment of costs, particularly on the family law tariff but also on the civil tariff, is meant to be a summary process." [27] Second, litigants should be encouraged to enter court orders. As stated in K.B. v. J.B., 2016 BCSC 1904 at para. 11: "Counsel should proceed as quickly as is reasonably possible to have the decisions of the trial judge reduced to the form of an order and to have the order approved or settled and entered". [28] Entered orders represent the final decision of the court and result in the court being functus officio with respect to the issues contained therein. Most importantly, they allow for finality and appeal. There is considerable merit to encouraging litigants to enter court orders, and the practice should be reinforced by the court's interpretation of the rules. [29] Finally, I wish to address the argument put forward by counsel that a registrar has no jurisdiction to assess costs in the absence of an entered order. [30] Registrars have no inherent

jurisdiction and are empowered by statute: Aydin & Co. v. Schaber, 2000 BCSC 925 at para. 17. [31] Specific to this case, registrars are empowered to assess the costs of family proceedings by s. 13(2) of the Supreme Court Act, R.S.B.C. 1996, c. 443, and Appendix B, s. 1(4) of the SCFR, which provides: "After the difficulty involved in a family law case has been determined, a registrar must assess the costs in accordance with the Schedule." [32] Section 1(2) provides that "If the difficulty involved in a family law case has not been determined under subsection (1), costs must be assessed under subsection (4) as if the family law case involved ordinary difficulty." [33] There is no express language in the relevant statutes, the SCFR or the SCCR, that strictly limits a registrar to the assessment of entered orders. As such, in my view, a registrar's jurisdiction to assess costs in the first place is not dependant on the presence of an entered order. [34] That said, practically speaking, the process of assessing costs relies on the presence of an entered order as that order expedites the process significantly. In Holland (Guardian ad litem of) v. Marshall, 2011 BCSC 607, Master Young described the jurisdiction of a registrar at the stage of costs assessment: 19 My jurisdiction is limited to that which is set out in the Rules of Court. I am permitted to assess costs in accordance

with the tariff. 20 This is a mechanical exercise in which the party with a costs award proves that a particular activity took place, and the registrar assesses the appropriate number of units. I agree that I am not permitted to reconsider an award of costs. It is for the court and not a registrar to decide whether costs should be ordered. [Emphasis added by Crossin J.] [35] As affirmed in Kondor, a successful party's entitlement to interlocutory costs under Rule 14-1(12) of the SCCR and Rule 16-1(9) of the SCFR crystallizes at the moment costs are awarded by a judge at trial or at the hearing of a petition unless the court hearing the application orders otherwise. The presence of a provision awarding costs in the order is immaterial; however, the "mechanical exercise" of costs assessment relies heavily on the presence of entered orders. [36] My conclusion is jurisdiction is not tethered to the presence of an entered order. [37] I am also of the view that registrars should be slow to assess the costs of interlocutory applications in the absence of entered orders. It should only be in unusual or exceptional circumstances that a registrar should depart from the summary assessment process. It is for the registrar to bring his or her experience to bear, on a case by case analysis, as to whether those circumstances are extant in any given hearing. [38] I conclude it was open to the

Registrar to assess the costs on the applications for which there was no entered order. I also find that the Registrar in this case was not incorrect or clearly wrong in declining to do so. [39] The Registrar's reasons for declining to assess the costs in the absence of entered orders focused on practical concerns and the dangers of doing so. His decision was based on the lack of information before him regarding the numerous interlocutory orders for which there was no entered order, the lapse of time since the orders were made, and potential impact on the summary nature of the costs assessment process. [40] The Registrar was also acutely alive to the somewhat tortured history of this proceeding. [41] The trial judge, Madam Justice Humphries, specifically noted in Waters v. Michie, 2015 BCSC 196 at paras. 14-15, that her prior judgment regarding costs indexed at 2012 BCSC 1942 disallowed costs on any items prior to 2004, and that she had not been asked to consider a number of interlocutory applications (some of which are now claimed by Ms. Waters), and was unwilling to make any further costs awards. [42] In addition, costs in this action were to be assessed by Master McNaughton, (as she then was), prior to her appointment to the Supreme Court of British Columbia. The assessment was interrupted by her appointment, but she raised substantial concerns at the initial assessment

hearing about the fact that many of the orders had not been entered, and she instructed that this oversight should be addressed. It was not. [43] A transcript of the Registrar's ruling was provided to me. The relevant portion is summarized in the following exchange between the Registrar and counsel for Ms. Waters: An assessment of costs, particularly on the family law tariff but also on the civil tariff, is meant to be a summary process. It's not meant to invite examination and cross-examination of witnesses as to who might have succeeded or whether they only succeeded in part on an interlocutory application. You were invited to get all of those orders entered. That would have been perhaps a Herculean task. I'm not criticizing you. But you haven't got them entered, so I really don't know if your client was successful in whole or in part or not at all and for those reasons, I'm not going to assess costs in which your client does not have an entered order to sustain such an assessment. I'm not going to entertain hearing from Ms. Rajotte or any other counsel to take me through what happened on an application eight or nine years ago to determine whether or not you were successful or not. There's no entered order so no costs provisions so no basis to assess costs. [32] These passages make it apparent that this was not a technical or merely procedural flaw that gave rise to a

without‑prejudice decision to not assess those line items. The failure to have the entered orders gave rise to substantive issues that caused Registrar Cameron to conclude that he could not or should not assess those items and resulted in a zero being assigned to those items on the certified certificate of costs. [33] The amounts claimed on the bill of costs were not distinct causes of actions, claims or issues that could be serially brought at whatever time Ms. Waters decided. The order that Ms. Waters relied on for the assessment was Justice Humphries' order of costs in the proceeding. While Mr. Michie does not agree that the 2003 orders are encompassed by that order, Justice Humphries' order is the only order that Ms. Waters has to ground her claim for these costs. They are part of an order for costs of the proceedings. That was the assessment before Registrar Cameron. Ms. Waters proceeded on that assessment. Some of her items were allowed; some were not. It was the adjudication of a bill of costs pursuant to the order, and Ms. Waters cannot pull that bill of costs apart and proceed item by item on serial assessments. That is what she is now seeking to do. She cannot do so because the bill of costs has been adjudicated in its entirety on its merits. [34] I pause to note that Ms. Waters appears to have been of the same view because it would otherwise not have been necessary

for her to appeal Registrar Cameron's disallowance of her claims on those items. Instead, she could simply have done what she has subsequently done, which is to have the orders entered, issue a second bill of costs and secure a second appointment to have the bill assessed. [35] I also note that there are apparently nine other orders that are not entered. Costs claims relating to those proceedings were the subject of the first bill of costs assessed by Registrar Cameron. There are no claims relating to them on the second bill of costs. Counsel for Ms. Waters has assured me that Ms. Waters does not intend to proceed with those and that the three on the second bill of costs are the end of it. Mr. Michie is understandably skeptical that Ms. Waters' intention may change. He notes that she appears to have changed the view she had of the nature of Registrar Cameron's order from the time she appealed it given her present assertion that Registrar Cameron did not adjudicate the merits of the costs she now claims. [36] I disagree that the first bill of costs, including the orders that are the subject of the second bill of costs, has not been adjudicated on the merits. Permitting Ms. Waters to have another "bite at the cherry", to use Justice Binnie's colourful phrase, is an affront to the notions of finality and fairness which underlie the doctrines that prevent re-litigation. [37] I also

agree with Mr. Michie that the doctrine that Master Muir applied was the doctrine of functus. Functus was explained in Harrison v. Harrison, 2007 BCCA 120, as follows at para. 29: [29] Once an order has been entered, however, the court which made the order is functus officio with respect to the issues therein: Piyaratana Unnanse et al v. Wahareke Sonuttara Unnanse et al, [1950] 2 W.W.R.796 (P.C.). Once the judge is functus, the power to re-visit an order is much narrower. Generally speaking, that power is confined to making corrections or amendments in two situations: first, under Rule 41(24) of the Supreme Court Rules where there has been a 'slip' in drawing up the order or where a matter should have been but was not adjudicated upon; and second, where there has been an error in expressing the manifest intention of the court: Buschau v. Rogers Communications Inc., 2004 BCCA 142; see also Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. [38] Mr. Michie argues that Ms. Waters' concession that the costs of the three orders were adjudicated by Registrar Cameron, even if she is correct that they were not adjudicated on the merits, is fatal to her position because as long as they were adjudicated and the order is entered, functus applies. [39] Ms. Waters argues that functus only applies to the particular decision-maker who makes the order. She submits that if a

different decision-maker becomes involved, then the elements of functus are really a threshold to determining whether issue estoppel or cause of action estoppel apply. If the functus threshold is passed and the principles of estoppel become applicable, then the question becomes whether there was a decision on the merits. If not, the cause of action is not estopped. [40] Ms. Waters argues that she would be precluded from bringing her new bill of costs before Registrar Cameron under the same appointment, but she is not precluded from bringing the same items addressed by Registrar Cameron before a different presider under a second appointment as she has done. [41] This submission fails because there is no clear authority that functus only operates to prevent the same decision-maker from revisiting a final decision. The authorities cited state that the "court" is precluded from re-litigating a matter. That is a reference to court as a collective of judicial officers as opposed to a specific judicial officer. In Trifidus Inc. v. Samgo Innovations Inc. et al., 2012 NBCA 31, the New Brunswick Court of Appeal cited the British Columbia Court of Appeal's decision in Harrison and concluded that an entered order renders the court functus as a whole and not just the judge who made the order. [42] I am of the view that Master Muir did not err in principle in applying the doctrine of functus

to determine that she, as a registrar, could not assess costs on these matters when they had already been assessed by Registrar Cameron and his certificate was entered. [43] In addition, if issue estoppel did animate or drive Master Muir's decision, I do not consider that to be an error in principle. I conclude that issue estoppel is applicable and precludes the re-litigation of the whole of the bill of costs certified by Registrar Cameron or any of its constituent parts. [44] I do not need to address Mr. Michie's alternative argument that this application is an abuse of process. However, I will address the evidentiary issue that arises out of this submission. [45] The evidentiary issue can only be understood in the context of the abuse of process argument. Mr. Michie advances the argument that the second bill of costs is an abuse of process as re-litigation in order to subject Mr. Michie to years of additional litigation because he did not accede to Ms. Waters' threat to pursue this appeal unless he forewent costs of Master Muir's order. That is an aspect of abuse of process sometimes referred to as "improper purpose" abuse of process. [46] Mr. Michie supports the improper purpose abuse of process argument with emails that are appended to an affidavit. Ms. Waters argues that those emails were in furtherance of settling the certificate of costs and settlement privilege applies

to them. I agree that the emails show that the parties were negotiating the matter of the final figure in the certificate of costs, and therefore there is an argument that they are not admissible due to settlement privilege: see Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 (CanLII), [2013] 2 SCR 623. [47] Mr. Michie argues that even if there were negotiations taking place, a point with which he does not agree, the policy objectives of not permitting the court's process to be abused cannot be ignored and can overtake settlement privilege so that the evidence is admissible. Mr. Michie says this evidence must be considered in the context of the sorry, tortured, and continuing history of this litigation as I have described, and when it is considered in that context, the abuse of process becomes apparent. [48] I am not persuaded that this email that is at the centre of this submission demonstrates an abuse of the court's process in the manner Mr. Michie asserts. It does appear to contain an intemperate and misguided outburst by counsel, but I cannot confidently conclude that it demonstrates an attempt by Ms. Waters or her counsel to abuse the court's process. Accordingly, it is inadmissible as it is covered by settlement privilege. Disposition [49] I conclude by observing that the thread that runs through all of the various doctrines and principles discussed

in these reasons is the interest in finality in judicial proceedings. The jurisprudence describing these doctrines and the situations in which they are applied demonstrate a flexible approach that is inconsistent with pigeon-holing these doctrines. The concepts of finality and avoiding re-litigation are overriding considerations: Danyluk, Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63) at paras. 29 and 37. The concern for finality to litigation is applicable in this case and supports my conclusion that Master Muir did not err in principle in her decision that the second bill of costs could not be assessed. [50] The appeal is dismissed. Costs [51] Mr. Michie seeks special costs or, alternatively, lump sum costs to be assessed at this time so that there are no further assessments. [52] I do not award special costs for the same reasons that I have found that this action is not an abuse of process as an improper step in the action or using the litigation for an improper purpose. [53] I am persuaded that because Mr. Michie has been successful, he is entitled to his costs on an ordinary costs basis. I am persuaded that a lump sum assessment of them is appropriate, for the reasons I have already given. [54] This matter has taken slightly in excess of a full day. I award $2,000 in costs payable on a lump‑sum basis. (DISCUSSION RE COSTS). [55] THE COURT: I will

say this. I did hear Mr. Shewfelt when he said he wanted to make submissions on costs, but I must say that when I announced my decision on costs, I had forgotten that he referred to a Calderbank letter, and I think it is appropriate to hear him on that. Therefore my decision on costs was premature. Given the time of day, it is not appropriate to hear those submissions now. [56] The parties may each make submissions of no more than three pages in length on costs. Mr. Shewfelt shall make his within five days of today. Mr. Hooper shall respond within five days of Mr. Shewfelt's submission. I will consider the submissions and render a supplementary decision on costs. "Matthews J."