Citation: Citibank Canada v. Begg, 2010 NSSC 95
Date: 20100311
Docket: Hfx No. 320145
Registry: Halifax
Between:
Citibank Canada
Plaintiff
v.
Gerald R. Begg and Maritime Travel Inc.
Defendants
COSTS DECISION
Judge: The Honourable Justice Peter M. S. Bryson
Heard: January 28, 2010, in Halifax, Nova Scotia, in Chambers
Written Submissions: March 1 and 2, 2010
Counsel: John Keith & Andrew Sowerby, for Citibank Canada
Grant Machum & Matthew Pierce, for Maritime Travel
By the Court:
[1] This decision on costs arises from the court’s dismissal of Maritime Travel’s motion to convert Citibank’s application in court to an action. As the parties have not been able to agree, they have accepted the court’s invitation to rule on costs.
[2] Citibank claims costs of $850.00 which are in the mid-range of the Tariff “C” scale for a motion involving half a day. Citibank correctly points out that both parties have put substantial effort into the motion. Maritime Travel argues that each party should bear its own costs because Rule 6 is new and there is not much jurisprudential precedent to guide the parties. Maritime Travel also refers to the court’s concluding comments that the outcome of the motion was not obvious. Citibank counters that the successful party should not thereby be deprived of costs.
[3] Costs are in the discretion of the court; but generally “to the victor go the spoils” and “to the vanquished goes the bill.” Ordinarily, the prevailing party should receive a substantial indemnity towards its successful efforts. The tariffs are a guide in that respect, but are not determinative. Likewise, the policy of the law is not to discourage unsuccessful litigants by penalizing them to such an extent as to preclude judicial determination of issues in dispute.
[4] Costs are also a useful means by which the court can encourage or dissuade, depending on the behaviour of litigants. Where a party has unreasonably compelled an opponent to seek from the court that to which the applicant was entitled, the court should censure such contumacy in costs. Such cases justify a higher award because it would diminish the financial burden on the successful party, discourage the respondent’s unreasonable conduct and ultimately improve management of the court’s process.
[5] In the circumstances of this case, the procedural jurisprudence is undeveloped. The rule is new. Maritime Travel had reasonable concerns about disclosure that it felt might not be accommodated under the application in court process. It also raised reasonable concerns regarding the potential involvement of third parties. On balance, the court concluded that these concerns could still be addressed in the application in court process.
[6] Given the amount of effort involved in this motion, I would ordinarily be inclined to award an amount higher than the tariff. However, as Maritime Life points out, the novelty of Rule 6 inevitably reduces the availability of judicial guidance concerning the scope of the Rule. Maritime Travel’s concerns were not without merit. Having considered the submissions of both parties, it is appropriate to award $750.00 to Citibank, in the cause.
Bryson, J.