Citation: Doncaster v. Chignecto-Central Regional School Board ,
2012 NSSC 383
Date: 20121105
Docket: Hfx.No. 398426
Registry: Halifax
Between:
Ralph Doncaster
Applicant
v.
Chignecto-Central Regional School Board and
The Attorney General of Nova Scotia
Respondents
__________________________________________________________________
Decision on Costs
__________________________________________________________________
Judge: Justice Kevin Coady
Heard: October 9, 2012, in Halifax, Nova Scotia
Decision: November 5, 2012
Counsel: Ralph Doncaster, Self-represented
Byrna Fraser, for Chignecto-Central Regional School Board
Edward Gores, QC, for The Attorney General of Nova Scotia
By the Court:
[1] Ralph Ivan Doncaster has become one of the most active self-represented litigants in this and other Courts of Nova Scotia. It is fair comment that all of these proceedings are rooted in his acrimonious separation from his spouse and children. Mr. Doncaster has decided that these family based issues are best dealt with by confrontation rather than conciliation. It appears as if he has recently discovered that the Courts of Nova Scotia provide the best weapons to pursue his objectives.
[2] Mr. Doncaster has concluded that his children’s school, and the respondent school board, have sided with his former spouse in a conspiracy to deprive him of a relationship with his children. There is no evidence to support Mr. Doncaster’s position.
[3] Early in Mr. Doncaster’s separation from Jennifer Field there was an incident at the children’s school. School staff understood that Ms. Field was the parent authorized to pick up the children after school. Mr. Doncaster arrived at the school requesting that the children be released to him. A confrontation ensued between school staff, Mr. Doncaster and Ms. Field. Police were called and he was directed to leave the school premises. Staff instructed the parents to resolve the issue of after school pick up and to advise the school accordingly. Due to this confrontation, as well as other circumstances, the school board served Mr. Doncaster with a notice pursuant to the Protection of Property Act. The notice prohibited him from being on the school property.
[4] Mr. Doncaster brought an application in chambers seeking the following relief:
That the notice be struck on the basis of Provincial Family Court John Comeau’s decision in R. v. N.F. 2004 NSFC 3. (Essentially Mr. Doncaster relied on this decision to argue that the Act did not apply to school premises.)
That the notice be struck on the basis that it breached his rights pursuant to section 7 of the Canadian Charter of Rights and Freedoms. (He served a notice of constitutional question on the Attorney General of Nova Scotia and that is how they became involved.)
That the notice be struck on the basis that it breached his equality rights pursuant to section 15 of the Canadian Charter of Rights and Freedoms. (This argument was not perfected. It appears to be based on the fact that Ms. Field was not served with a similar notice and that such created an unlevel playing field in the matrimonial proceedings.)
[5] All three applications were dismissed by way of an oral decision.
[6] The respondent School Board seeks $6000 in costs based on “a full day hearing applying a multiplier of 3, based on the complexity, work involved and the issues as outlined in Tariff C.” The respondent Attorney General of Nova Scotia have requested a costs award but have left quantum to the Court’s discretion.
[7] The applicant argues there should be no award of costs. He views these applications as novel and, as such, should be insulated from costs. He relies on Bennett v. Bennett (1981), 45 N.S.R. (2d) 683 for his proposition that “costs may also not be awarded if the case raises new issues not previously decided by the Court or an interpretation of a law or ambiguous statute.” Mr. Doncaster also advances his impecuniosity as a reason to not award costs.
[8] There was nothing novel about the first application. This Court ruled in R. v. C.W.L. 2007 NSSC 14 that the word “premises” in the Protection of Property Act includes school property. Mr. Doncaster was provided with this authority by both respondents in advance of the hearing.
[9] The Bennett case was a matrimonial case and was decided in a time when costs were generally not awarded in family matters. Justice Hallett overturned that decision and ordered that the successful mothers costs be taxed. That decision provides little guidance to this costs application. If anything, it supports the respondent’s position.
[10] The law relating to costs is summarized in Orkin’s Law of Costs as follows:
A successful litigant has by law no right to costs. Although he may have a reasonable expectation of receiving them, this is subject to the court’s absolute and unfettered discretion to award or withhold costs. This discretion, which is absolute, is a judicial one to be exercised according to the circumstances of each particular case and based upon material before the court. It is the discretion of the trial judge and its exercise is not to be referred or delegated; nor can it be fettered by any consent of the parties, even though great weight should be given to such consent; nor should it be interfered with on appeal.
[11] And further:
As a rule costs should follow the result. That is to say, it is well settled that where a plaintiff is wholly successful in his action and there is no misconduct on his part, he is entitled to costs on the ground that there is no material on which a court can exercise a discretion to deprive him of costs.
[12] The rule that a successful party is entitled to costs is of long standing and should not be departed from except for very good reasons.
[13] I cannot articulate a reason to deny costs to the respondents. All applications were without merit and lacked any evidentiary support. The respondent’s briefs would have clearly notified Mr. Doncaster of the futility of his arguments, both legally and because of the lack of evidence.
[14] It is also noteworthy that both respondents had to expend significant resources to respond these imperfected applications. The affidavits and legal briefs were voluminous. The degree of response was appropriate given that Mr. Doncaster was challenging principles that were extremely important to both respondents.
[15] Civil Procedure Rule 77 addresses the issue of costs. Rule 77.02 states:
77.02(1) A presiding judge may, at anytime, make any order about costs as the judge is satisfied will do justice between the parties.
(2) Nothing in these rules limits the general discretion of a judge to make any order about costs ...
[16] Rule 77.04 permits a judge to grant cost relief because of poverty. It states:
77.04(1) A party who cannot afford to pay costs and for whom the risk of an award of costs is a serious impediment to making, defending or contesting a claim may make a motion for an order that the party is to pay no costs in the proceeding in which this claim is made
[17] In Rafuse v. Zinck’s Bus Co. (1993), 122 N.S.R. (2d) 183 Justice Gruchy discussed this rule as follows:
An order such as the one sought here is intended to provide access by the poor to the judicial system. That is the policy of the rule and it would be impossible to disagree in any way with that policy.
But when a party has such an exemption, it becomes a very significant tool. A party which such an exemption may then pursue an adversary with financial immunity.
[18] Mr. Doncaster has not satisfied me that he is poor. Further, I am satisfied that he is the exact kind of litigant who will exploit the Court’s services unless he is tempered by cost concerns.
[19] Civil Procedure Rule 77.08 directs that “a judge may award lump sum costs instead of Tariff Costs.” In light of the circumstances of Mr. Doncaster, as well as the nature of his applications, I am exercising my discretion in favor of a lump sum award. I am not satisfied that Tarriff “C” would do justice between these parties in light of surrounding circumstances.
[20] I award $2500.00 in costs to both respondents for a total costs award against Mr. Doncaster in the amount of $5000.00.
J.