Supreme Court

SUPREME COURT OF Nova Scotia

Citation: Havelka v. Greenfield Construction Ltd., 2025 NSSC 415

Date: 20251219

Docket: Hfx No.  499220

Registry: Halifax

Between:

 

Jiri Havelka and Mary Havelka

Applicants

 

v.

 

Greenfield Construction Ltd. and the Attorney General of Canada

 

Respondents

 

Judge:	The Honourable Justice Peter P. Rosinski
Heard:	September 6, 7, 8, 9; November 7, 8, 9, 10, 2022, April 15, 16, 17, 18, 22, 23, 24, 25; July 2, 3; and August 19, and 20, 2024 in Halifax, Nova Scotia
Final Written Submissions:	January 28, 2025 – Attorney General of Canada February 6, 2025 – Greenfield Construction Ltd.
Counsel:	Jiri Havelka and Mary Havelka, Self-Represented Daniel Jardine for Greenfield Construction Ltd. Sarah Drodge for the Attorney General of Canada

 

 

By the Court:

Introduction

[1]             In 2013, the Havelkas bought what seemed to be an idyllic waterside retirement home at Port La Tour, Shelburne County, Nova Scotia.

[2]             A stone’s throw away-there was a working Small Craft Harbour with two older wharves which serviced a seasonal fishing fleet and small processing plant.

[3]             Small Craft Harbours are under the jurisdiction of the Federal Government of Canada (hereinafter “Canada”).

[4]             The roadway to the wharf area is the legal responsibility of, and maintained by, Canada.

[5]             That same roadway borders the Havelkas property.

[6]             The wharves needed refurbishing and the contract to do so was granted to Greenfield Construction Ltd. (hereinafter “Greenfield”).

[7]             In or about March 2019 through into including October 31, 2020, Greenfield conducted extensive de-construction and construction operations on the waterfront.

[8]             Mr. and Mrs.  Havelka were at that time respectively approximately 74 and 64 years of age.

[9]             These activities generated significant amounts of noise, disruption, and at times reduced air quality, which were continually experienced by the Havelkas as a result of the proximity of their home to the construction area.

[10]         The Havelkas sought legal advice and commenced a legal proceeding by filing a Notice of Application in Court on July 20, 2020, as amended October 29, 2020, under signature of counsel Richard Norman. Therein, they alleged Greenfield and Canada created “nuisance” and substantial and unreasonable interference with the use and enjoyment of their property.

[11]         On August 7 and August 10, 2020, respectively, Greenfield and Canada filed their Notices of Contest (as amended by Canada on May 11, 2022).

[12]         On August 13, 2020, a Motion for Directions had been scheduled before Justice Denise Boudreau.

[13]         The matter was adjourned to September 23, 2020, for a Judicial Settlement Conference, and August 20, 2020, for General Chambers, the latter date not being used but rather the parties appeared on August 26, 2020, before Justice Tim Gabriel, to advise that they were close to agreement regarding a Consent Order.

[14]         Ultimately, the parties could not agree.

[15]         On January 13, 2021, the parties appeared before Justice Darlene Jamieson (as she then was) for a Motion for Directions at which hearing dates were set for 3 days: November 16, 17 and 18, 2021, and associated filing dates.

[16]         On or about February 18, 2021, Canada made a formal settlement offer for the “all-inclusive sum of $30,000” to Richard Norman. Consequently, Civil Procedure Rule 10 is applicable, and I have considered it herein.

[17]         The Havekas discharged their counsel and confirmed this by Notice of Intention to Act on their own behalf filed April 26, 2021.

[18]         Throughout the ensuing hearing dates to present, Mr. and Mrs. Havelka have been self-represented.

[19]         It is important to note that they are highly educated and compendiously assembled a photographic and video record of Greenfield’s activities over time, much of which became evidence at the hearing. Both of them testified at length.

[20]          They also produced written arguments such as their September 15, 2022 “Summary of the case” and their August 15, 2024 “Updated Brief”.

[21]         They were passionate about what they characterized as an injustice imposed on them by Greenfield and Canada.

[22]         They were indignant at what they perceived as the lack of respect and genuine efforts to mitigate what they characterized as “nuisance”, and substantial and unreasonable interference with the use and enjoyment of their property.

[23]         In a letter dated September 14, 2021, counsel for Canada on behalf of the parties wrote to the Court to advise that although Justice Jamieson had set the matter down for hearing on November 16 – 18, 2021 at a Motion for Directions on January 13, 2021, each of the parties were in agreement to adjourn those dates and provided a signed Consent Order by them, requesting an adjournment of the hearing “to three days in the Summer of 2022, subject to Court availability.”

[24]         What is significant about that letter is that at that time both Greenfield and Canada were still of the view that 3 days was a sufficient period of time to complete the hearing of this matter.

[25]         On November 25, 2021, the parties again appeared for a Motion for Directions before Justice Darlene Jamieson (as she then was).

[26]         At the November 25, 2021, Motion for Directions, the Court noted in the Motion for Directions Memorandum: “Affidavit Disclosing Documents: Completed by all parties”; and was satisfied that the matter should be set down for hearing over 3 days – September 6, 7, and 8, 2022.

[27]         I was assigned to preside over to the hearing set for September 6, 7 and 8 2022.

[28]          Even after the voluminous materials filed by the Havelkas were provided to the Respondents, there was no request by the Applicants or Respondents for more sitting days to be scheduled.

[29]         Ultimately the hearing on the merits consumed all or some portion of each of the 20 hearing days.

[30]         I note here that the number of hearing days expanded greatly as a result of the following factors:

1.	The duration of work during which a nuisance/substantial interference with the lawful enjoyment of the Havelka’s property could have been effected was approximately 18 months (March 2019 – October 2020);
2.	Mr. and Mrs. Havelkas presented very extensive and detailed photographic and video evidence of, and extensive testimony regarding, the alleged nuisance and interference with the use and enjoyment of their property [which I infer would have been much more streamlined if they had the services of legal counsel];
3.	The Havelka’s had to travel to Halifax in order to attend Court here, which meant they had to take accommodation in local hotels, thus not having the comforts and convenience of their own home. Notably, Mr. Havelka was wheelchair-bound for a significant portion of the hearing dates, and thus required Mrs. Havelka’s assistance in moving around;
4.	Mr. Havelka’s serious health conditions and consequent circumstances which worsened over time (especially in and after 2023 – 2024) caused him to be continually very tired - sometimes to the point of exhaustion where he could not resist falling asleep in court – hence many adjournments during court days were taken, some to permit Mr. Havelka to leave for the remainder of the day (e.g., September 9, 2022)[1];
5.	June 5 and 6, 2023 (Days 9 and 10 -matter adjourned to April 15 – 25, 2024 – the Havelkas finished testifying on April 17, 2024 (Day 11)) the Havelka’s were not present because they had been displaced from their home as a result of wildfires burning in their area;
6.	There was also the need for an adjournment as a result of significant non-disclosure by Canada (April 25, 2024 – further dates were assigned between July 2 – August 24, 2024; see also my letter to Canada’s Counsel June 20, 2024 regarding “several concerns” I had in relation to the documents in question and whether Civil Procedure Rule 51.03 – Exclusion of evidence for non-compliance ought to be relied upon by the Court). The amount of non-disclosure was significant, and had the Havelka’s retained counsel, inter alia, they may also have had reasonable arguments for a mistrial, and arguments that the Respondent Canada pay for their wasted costs to date. However, the Havelkas reasonably requested no more than an adjournment;
7.	July 2 and 3, 2024, Canada’s witness introduced and was cross-examined upon the very late disclosure. The Havelkas called no rebuttal evidence and arguments were put over to August 19, 2024, on which day the Havelka’s started and concluded their legal submissions;
8.	August 20, 2024, Greenfield’s Counsel, who the day before appeared by telephone as he had a fever, indicated that for similar reasons he required an adjournment to August 21, so no submissions were heard;
9.	August 21, 2024, Canada and Greenfield made their submissions. The Havelkas made a final oral brief submission following up on their August 15, 2024, brief; and
10.	The Court reserved its decision, until it was released on January 10, 2025.

[31]         Given all the circumstances in this prolonged proceeding, I am not satisfied more likely than not that the Havelkas “unnecessarily prolonged the proceeding” per CPR 77.07.

[32]         I consider that, while they still had the benefit of Mr. Norman’s retainer at that time, the Havelkas did not accept the February 18, 2021, settlement offer from Canada. I conclude that, more likely than not, the offer was made at a time before the Havelkas had produced their disclosure to the Respondents (see the November 25, 2021, Motion for Directions Memo of Justice Jamieson) such that the Respondents’ counsels did not have that material available to inform their decision-making.

[33]         While I concluded that Mr. and Mrs. Havelka experienced significant levels of prima facie nuisance, and interference with the use and enjoyment of their property, I confirmed on January 10, 2025, that Greenfield and Canada were not legally responsible for the claims put forward by them as a result of statutory authority immunity – 2025 NSSC 10.

[34]         I note that statutory authority immunity was not expressly pleaded as a defence in the pleadings of either Canada or Greenfield, but that Canada did expressly rely thereon in its May 19, 2022, brief at paragraph 41 (as did Greenfield in providing its August 21, 2024 email enclosing an excerpt from Ruth Sullivan’s text, The Construction of Statutes, 7th Edition c. 27 - Crown Immunity); however, even then, I am not satisfied that the Havelkas fully appreciated the significance thereof, nor of Canada’s Amended Notice of Contest filed May 1, 2022, insofar as it solely added in general language, that Canada was also relying on the “Fishing and Recreational Harbours Act, R.S.C., 1985, c. F-24, in particular sections 4 to 8, and the Regulations made pursuant thereto.”

[35]         In my decision I stated:

If the parties are unable to agree on costs, I will receive their 10-page maximum written submissions as follows: Canada and Greenfield within 20 days of the release of the decision; the Havelkas within 20 days of receipt of the Respondents submissions; and the Respondents will have a further 10 days to address the submissions of the Havelkas.”

[36]         On January 28 and February 6, 2025, Canada and Greenfield filed written submissions in relation to the costs they claim.

[37]         Initially, Mr. and Mrs. Havelka were directed to file their costs submissions by February 27, 2025.

[38]         I was informed that Mr. Havelka had a stroke on or about January 14, 2025.

[39]         In light of Mr. Havelka’s very serious medical circumstances, I have repeatedly “put on pause” the litigation in order to allow the Havelkas more time to prepare their costs submissions and file them – inter alia see my letters dated February 24, 2025, April 28 and April 30, 2025, June 3, 2025, and July 7, 2025 in which I set August 20, 2025 as the new filing date for their costs submissions.

[40]         To date, the Havelkas have not filed their submissions on costs.

[41]         In response to inquiries by my Judicial Assistant regarding their submissions, the Havelkas did send an email on November 13, 2025, which I set out in part:

This is our brief:

Actually, there is nothing new to tell except:

A- Jiri Havelka’s health is getting worse every day. …

B-  Attached is an article we found dated July 2025 about the reputable Greenfield.

[42]         Shortly thereafter, Canada’s Counsel wrote the Court:

This correspondence does not address the Respondents’ submissions on costs or otherwise engage with the principles applicable to costs awards. As such, the Attorney General of Canada maintains its position on costs, as set out in our correspondence to the Court of January 28, 2025.

[43]         To date, no Costs submissions from the Havelkas have been received by the Court.

[44]          Mr. Havelka’s health has continued to decline, to a point where he is reportedly in palliative care.

[45]         Given the circumstances, I will not insist that the Havelkas file their costs submissions in the near future.

[46]         However, the uncertainty of Mr. Havelka’s health circumstances likely means that they will not be in a position to file their legal argument on costs for an indefinite period of time.

[47]         I am retired as of end of day December 12, 2025.

[48]         Despite being retired, I am legally authorized to continue work on cases which have already been concluded, but only require my decision, per s. 36(1) Judicature Act, RSNS 1989, c. 240 as amended:

Judgment by judge leaving office or absent

 36 (1) Where a judge resigns his office, is appointed to any other court or ceases to hold office, he may at any time within eight weeks after such event give judgment or grant an order in any proceeding previously tried or heard before him, as if he had continued in office.

[49]         To avoid complications therefrom, I will render this decision without express argument by the Havelkas (although I have very carefully scrutinized the Respondents’ arguments) as I find it to be in the interests of justice to do so, as they are self-represented, and in light of the circumstances and delay that has thus far elapsed.

The positions of the successful Respondents

Greenfield

[50]         Greenfield has filed the affidavit of Christine Ross (Legal Assistant at Jardine Sullivan) and its brief.

[51]         Her affidavit simply confirms the actual legal fees billed to and paid by Greenfield construction, and that: “additional invoices for the file … [that Mr. Jardine] expects … will total an additional sum of approximately $10,000 … total paid invoices total $85,335.72.”[2]

[52]         Greenfield argues that it was forced to incur significant costs far in excess of what might be contemplated under a straightforward or conventionally brief Application in Court relying on costs principles cited by our Court of Appeal decisions in Armoyan, 2013 NSCA 110 and Williamson, 2007 NSCA 132.

[53]         It argues that the Havelkas unnecessarily prolonged the proceedings and as a result an elevated costs award is appropriate – Burke v. Flader, 2018 NSSC 12 relying on Civil Procedure Rule 77.07(2)(e); and Foss v. Sutherland, 2014 NSCA 70 where “the Court of Appeal emphasized that an unreasonably refused settlement offer can be a critical factor warranting an enhanced costs award (para. 31)”[3].

[54]         Canada made “an early offer to settle which, if accepted, would have provided the Applicants with a recovery far exceeding the zero [dollars] ultimately awarded. In Foss v. Sutherland, 2014 NSCA 70 (CanLII), the Court of Appeal emphasized that an unreasonably refused settlement offer can be a critical factor warranting an enhanced costs award (para. 31)…”.

[55]         Greenfield argues that had this offer been accepted “the considerable time and resources expended – by both the parties and the Court - could have been avoided”.

[56]         It suggests an enhanced costs award is appropriate per the reasons in Foss v. Sutherland, 2014 NSCA 70.

[57]         In summary, Greenfield argues:

… this case goes well beyond the normal parameters of an Application in Court, making straightforward application of Tariff A insufficient to provide the meaningful and or just contribution toward its actual legal costs.

[58]         In light of:

•        the “amount involved” reflecting the claimed quantum;

•        the exceptional length and complexity of the hearing;

•        conduct by the Applicants that unnecessarily increased the time and costs expended; and

•        a reasonable settlement offer that was declined

[59]         Greenfield requests:

1.	an award of costs in a lump-sum or increased Tariff amount to reflect a substantial contribution to its actual legal fees. Greenfield respectfully suggests that an award of $60,000 exclusive of disbursements would fairly capture the unique demands of this litigation.
2.	an award of reasonable disbursements including expert fees, hearing related travel, and any other necessary expenses, all of which can be detailed to the Court upon request.[4]

[60]         As with counsel for Canada, choice of counsel by a client is a discretionary decision, and in some circumstances the fact that counsel must travel a significant distance to the location of a hearing may be viewed as not shown to be reasonable. Mr. Jardine had to travel from Miramichi, New Brunswick, to Halifax, Nova Scotia to attend Court.

[61]         I do not consider his retention by Greenfield to be a justifiable basis to claim travel time, because there is no evidence or argument that a similar local counsel was not available – see Justice Muise’s reasons most recently in Thurber v. Thurber Estate, 2025 NSSC 273, and Justice Moir’s reasons at para. 13 in Brown v. Mar Taino S.A., 2016 NSSC 91.

The “amount involved”

[62]         Let me briefly address the issue of what is argued to be “the amount involved”.

[63]         In their August 15, 2024 “updated brief” in advance of final oral submissions, the Havelkas comprehensively referenced at various locations in their brief, that they were claiming damages as follows:

•	p. 9 - “$35,000 each for the loss of use and enjoyment of the Applicant’s property.”[5]
•	p. 10 - “At the beginning of 2022 the Applicants were in shock and disbelief to find out that what would’ve cost them $100,000, 3 years ago [to renovate their home], cost them double the amount in 2022. The Applicants are asking for compensation of $30,000 to offset some of the loss that the Applicants suffered by not being able to renovate while Greenfield were building the wharf.” – Even if they had been successful on liability, this amount could not be ordered as there is simply insufficient evidence to support it.
•	p. 11-12 - “The Applicants three dogs suffered as much as the Applicants themselves suffered. …  The Applicants are asking $10,000 compensation for each dog [the Applicants had three dogs]. This claim is without legal or evidentiary foundation.
•	p. 12 - “Heating… We intended to continue the installation and rest of the renovations [in order to make their home more energy efficient and comfortable] in the spring of 2019. It was impossible to do any renos while Greenfield workers were building the wharf. If we proceeded with insulation, we would’ve saved $4000 a year in heating cost.” – This claim is without legal or evidentiary foundation.
•	p. 12 - The Applicants seek recovery of invoiced costs of a counsel who the Applicants engaged from June 2022 March 2021. In addition, the Applicants ask for an equivalent expense of a counsel representing themselves from April 2021 until today.” These claims are not relevant in present circumstances.
•	p. 12 - “The Applicants seek recovery of the cost of accommodation, transportation, meals and cost of dog sitting associated with this Court case.”  There is no evidence available to the Court regarding what amounts are being claimed, though I might hazard an estimate at $500 per day for 20 days, or $10,000. However, I note that the Havelkas chose Halifax District rather than the much closer Bridgewater District to file their claim- and no change of venue application was made.

[64]         I conclude that regarding their claims of:

•

loss of use of a food source garden area $5000 in total; lost opportunity to use their property as a rental for campers and RV owners $15,000; the claim that they were in the process of renovating a basement for a bed-and-breakfast purpose in the Summer for tourists and in the Winter for temporary fishermen which was delayed, for which they claim a lost potential revenue over 22 months of $11,000 [I note associated expenses have not been estimated or deducted];

•

other than the garden losses, these claimed losses had no persuasive evidentiary basis. Moreover, I am not satisfied that the garden losses rose as high as $5000, as there was no precise evidence given in relation thereto.

[65]         I note as well that in their Amended Notice of Application they sought special damages; general damages; aggravated damages; punitive damages; prejudgment interest; and costs. The circumstances as I found them would not warrant aggravated or punitive damages in any event.

[66]         Greenfield does not expressly indicate what the Court should consider to be the “amount involved”.

[67]         From a review of all the materials filed by the Havelkas, I am satisfied that, to the extent it is discernible,  a realistic “amount involved” arising from their claims, was objectively no more than $100,000 in the very best outcome for them (which was unlikely), and much more likely closer to a range between $50,000 to  $80,000.

Canada

[68]         Canada has filed the affidavit of Meagan Demedeiros (Legal Assistant to Counsel for the Attorney General) and its brief.

[69]         The affidavit sets out Canada’s detailed statement of account for this matter which totals $149,815.56 for 704 hours of recorded “billable” time or by simple averaging, $212.80 per hour.

[70]          As I observed in relation to Greenfield’s actual legal costs, they are largely irrelevant. To do justice between the parties, I conclude it is not necessary to depart from the CPR 77.06 Tariff “A” guidelines and order a lump-sum payment for costs.

[71]          I note some of the time charged to the Havelkas file, includes five hours of one-way travel for Counsel to Court in Halifax and to return home.

[72]          Without wishing to dive more deeply into the “billing” practices of the Department of Justice Canada, it strikes me that the decision to employ counsel from outside Halifax requiring significant travel time, is one that is discretionary, and in these circumstances, it would be unreasonable that these billed time intervals should be borne/paid by the Havelkas.

[73]         Insofar as travel time is concerned for Greenfield’s and Canada’s counsels, see Justice Muise’s reasons in Thurber v. Thurber Estate, supra.[6]

[45]    “Necessary and reasonable disbursements” are also to be included in a costs award: Rule 77.07.

[46]    The Respondent's disbursements total $13,083, including $3,967 paid to her actuary, and inclusive of HST.  I note that a portion of the disbursements is for travel to, and accommodation in, Annapolis Royal for the hearing. That portion, with HST, totals $2,415. Such travel and accommodation expenses for out-of-town counsel are only properly included as a disbursement to be paid by the unsuccessful party where local counsel was not reasonably available or “for some other good and valid reason, the retention of local counsel would not be appropriate”: Wall v. Haney, 2007 NSSC 153, para 17. There has not been any evidence, or even representation, to establish that it would not have been appropriate for the Respondent to retain local counsel. Therefore, it has not been shown that these travel and accommodation expenses were reasonable and necessary disbursements. Consequently, they will be disallowed.

[My bolding added]

[74]         The billings ledger in evidence suggest that Counsel recorded accurately every 15 minutes or greater time interval that she put her mind to this litigation. Others also worked on this file, but not in the capacity of a lawyer: Mani Taheri. Typically, private legal counsels’ fees are considered to include such services, unless perhaps it would be unreasonable to do so. I find Canada’s Counsel’s billings should be considered to include Mani Taheri’s services. Moreover, in the governmental context, while such billings may be useful for purposes of financial introspection by government, considering those hours worked entirely analogous to private counsels’ hours “billed” overlooks the self-restraint that private counsel must exercise when billing clients based on the competitive market environment, the tolerance of private clients, and their financial ability to pay. Therefore, if one has regard to the “billings” of Canada’s counsel, they should be reduced to account for this reality and to ensure some level of comparability with private counsels’ billing practices, which are the premise upon which our Rules and the Tariffs therein are constructed.

[75]         The affidavit also confirms the disbursements totals at roughly $4,000 which I accept.

[76]         Lastly, the affidavit contains the $30,000 offer of settlement made by Canada to the Havelkas on February 18, 2021.

[77]         In its brief, Canada argues that the “amount involved” under Tariff “A”, as: “the total amount claimed by the Applicants was $175,000 as set out in their post-hearing brief. Under Tariff “A”, the Basic Scale amount for a claim with an amount involved of $175,000 is $16,750.”

[78]         Canada argues that the Tariff adds to that amount for each day of trial $2,000, and it being “heard over 20 days”, reduced to 18 days as a result of the time required to address the non-disclosure by Canada, should result in an additional $36,000 for a total of $52,750 in costs.

[79]         Canada goes on to argue that factors that increase that amount properly include, that:

1.

the amount claimed was $175,000 and the amount recovered was $0;

2.

the Havelkas’ “conduct”, including their improperly formatted manifold affidavits, generally without page numbers and numerous embedded links attachments and videos “significantly added to the length of the proceeding, with the Applicants taking 6 days in Court to review their affidavits.”; And the four days of cross examination of the Applicants was unduly made long “primarily attributable to [Mrs. Havelka’s] protracted answers to questions… and “by protracted cross examinations of the Respondents’ witnesses by the Applicants, taking approximately 5 days of Court time… The protracted nature of this matter resulted in significant expense to the Respondents.”

[80]         I bear in mind that the time interval over which the nuisance claimed could have been created was between March 2019 and October 2020, which was the case continually on a daily basis, excluding a modest amount of time when the project was shut down.

[81]         Canada states that a costs award at the Tariff “A” amount of $52,750, per CPR 77.06 would not represent a “substantial contribution to Canada’s actual expenses, which are almost triple the Tariff amount. In addition… also incurred disbursements in the amount of $3996.66.”

[82]         Lastly, Canada notes it made a $30,000 written offer to the Havelkas early in the proceedings (February 2021) and that amount exceeds the Havelkas’ $0 outcome at trial.

[83]         Canada submits that $60,000 in costs plus disbursements of $3,996.66 is appropriate.

Conclusion as to a Costs award that will do justice as between the Parties

[84]         The successful parties were Canada and Greenfield, who respectively claim as costs against the Havelkas of $63,996.66 and $60,000 plus “an award of reasonable disbursements including expert fees, hearing related travel, and any other necessary expenses, all of which can be detailed to the Court upon request.”

[85]         Costs are intended to indemnify the successful party for a substantial portion of their reasonably incurred legal costs and disbursements.

[86]         Costs awards must be sensitive to the contextual fabric surrounding the litigation, insofar as they are intended to partially indemnify successful parties on the merits, but also to reward or punish litigants for their actions or inactions taken throughout the litigation in order to censure or approve of those behaviours, and signal consistent applications of the principles by the Court that seek to encourage litigants to act reasonably in relation to other parties engaged in litigation in future.

[87]         A lump sum award is not required to do justice between these parties.

[88]          I find that a just costs award can be achieved using the combination of CPR 77.06 and Tariff “A”.

[89]         I acknowledge that, although this proceeding was clothed with the procedural appearance of an Application in Court at first instance, it went much beyond the limitations of that process insofar as hearing time is concerned.

[90]         Notably, however, at two separate Motions for Direction dates each of the parties had agreed to 3 days hearing and the Court set 3 days for the hearing. Although not full sitting days, 20 days of appearances were required.

[91]         The Havelkas were self-represented; however, I find they genuinely attempted to present their evidence reasonably quickly and were repeatedly accommodating regarding time constraints; however, the numerous total days over which this project continued necessarily caused the number of sitting days to also accumulate.

[92]         I am satisfied that the Havelkas did not “unnecessarily” prolong the hearing; however, as the hearing grew lengthier, it necessarily did cause greater expense to the Respondents.

[93]         As a result of Mr. Havelka’s deteriorating medical circumstances, a greater number of days were necessarily required.

[94]         As a result of Canada’s non-disclosure of a substantial number of documents later in the hearing dates, the end date for the hearing was pushed out further into the future and more days were required.

[95]         Canada did make an offer to settle for $30,000 in February 2021, which, although lower than what the Havelkas would have received had they been successful, at the time it was made, all things considered, it was within a range of reasonable settlement offers.

[96]         Correspondingly, at that point in time it was not patently unreasonable for the Havelkas to refuse the offer.

[97]         I conclude that a reasonable range of “amount involved” is between $50,000 – $80,000.

[98]         Party and party costs at Scale 2 of Tariff “A”, suggests a costs award of $9,750 plus $2,000 per day for 11 days[7] and costs to each successful litigant should be assessed as $9,750 plus $22,000 with a further $3,996.66 disbursements payable to Canada for the following totals:

•        Canada – $35,746.66

•        Greenfield Construction – $31,750.

[99]         I direct that Counsel for Canada prepare the Order as soon as reasonably possible.

Rosinski, J.