Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

Adlair v. Nunavut, 2016 NUCJ 23

Date:
Docket:
Registry:

20160914
21-12-709-CVC
Iqaluit

Plaintiff:

Adlair Aviation (1983) Ltd.

-and-

Respondent

The Commissioner of Nunavut,

Government of Nunavut, as represented by
Department of Community & Government
Services, and Mark McCulloch, in his
capacity as Manager, Procurement
Contracts and Logistics, for the
Department of Community & Government
Services

________________________________________________________________________
Before:

The Honourable Mr. Justice Bychok

Counsel (Plaintiff):
Counsel (Respondent):

Ed. J. Brogden
Vincent J. DeRose; John L. MacLean

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
April 13, 2016
Costs

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

I. INTRODUCTION
[1]

The plaintiff started a civil action seeking various remedies following

the award of a Government of Nunavut medevac contract to a
competitor. The plaintiff filed affidavits in support of its action. The
respondents applied to the court to strike certain paragraphs in those
affidavits. I ruled that the affidavits were based almost entirely on
improper argument, inadmissible hearsay, and speculation. I struck
the affidavits in their entirety from the record. I then invited the parties
to file written argument concerning the award of costs on the
application. The plaintiff did not file any argument. The respondents
claim from the plaintiff legal fees totalling $21,320 plus GST. They
also claim $3,031 for the travel and lodging expenses incurred by
their Ottawa lawyer who flew to Iqaluit to argue their application.

II. ISSUES
[2]

There are two issues I must decide concerning costs:

1. Are the costs claimed by the respondents reasonable in
all the circumstances?
2. Is this one of those exceptional cases where costs
should be ordered to be paid not entirely by the litigant,
but shared by its lawyer?

[3]

For the reasons which follow, I rule that:

1. The respondents are not entitled to travel and lodging
costs incurred by the lawyer from Ottawa. Nor are they
entitled to a senior litigators legal fees. They are
entitled only to a $10,000 award plus GST.
2. This appears to be a case where the cost award should
be shared equally by Adlair Aviation (1983) Ltd. [Adlair],
and its counsel, Mr. Brogen.

III. ANALYSIS
A. Issue 1: are the costs claimed by the respondents reasonable in
all the circumstances?
[4]

In civil court, the successful party in an action is generally

reimbursed by the losing party for the costs it incurred. Those
costs are awarded by the court. 1

[5]

The respondents claim they are eligible for the legal fees they
paid to Mr. DeRose, a highly experienced lawyer they flew in
from Ottawa. They also say they are entitled to that lawyers
travel and lodging costs because the expertise required to
argue the application is not available from those solicitors in
the Territory.

[6]

I disagree.

[7]

Mr. DeRose argued the respondents position succinctly and

well. However, this was not a case as required in the rules
where such expertise had to be brought in from outside the
territory. 2 Any Government of Nunavut staff lawyer in Iqaluit
could have made this argument. Mr. MacLean, who attended
with Mr. DeRose, is more than capable of arguing this motion to
the same degree of success.

[8]

Courts across the country are recognizing that the right of a

client to bring a senior litigator to court does not inherently
guarantee that all of that litigators costs will be awarded if he or
she is successful. 3 There is nothing complex or difficult in the
rules which govern the drafting of an affidavit. These straight
forward rules are found in Part 30 of the Rules of Court. The
problems with the affidavit were numerous and clear on its face.
Any member in good standing of the Law Society of Nunavut
would have been qualified to handle this application. It did not
require the attendance of a senior civil litigator resident outside
Nunavut. Therefore, I decline to award costs in the amount
claimed by the respondents.

Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu) 010-96, Civil
Procedure Rules 643 [Rules of Court].
2
Rules of Court, Rule 648 (4)
3
Donovan v. QCRS, 2016 PECA 1 at para 40 51, 2016 CarswellPEI 4.

[9]

The respondents, of course, are completely free to engage the

services of any lawyer they choose who is licensed to practice
in Nunavut. However, they are not entitled to claim extra costs
from the applicant when there are any number of qualified
lawyers who live in Iqaluit who could have handled the
application.

[10] Even though the affidavits were clearly problematic, between

them they spanned more than 50 pages. It was also often
difficult for the reader to correlate parts of the affidavits with the
relevant exhibits. It took me a long time to work through it. I am
sure it took the respondents lawyer just as long to work through
it in order to prepare their application. They are entitled to their
costs for this time consuming exercise.
[11] The respondents costs are adjusted to reflect the fees which
might have been charged by a junior lawyer resident in Iqaluit:
$10,000 plus GST.
B. Issue 2: is this one of those exceptional cases where costs
should be ordered to be paid not entirely by the litigant, but
shared by its lawyer?
[12] In a civil action costs are generally awarded against the losing
party and not against its lawyer. Costs, though, may be
awarded against the losing partys lawyer in certain
circumstances. 4 One example is where the lawyer for the losing
party knew, or ought to have known, that his actions were not
only outside the rules, but futile.
[13] I found in this case that the affidavits filed by Mr. Brogden were
so flawed that it failed entirely to follow the straight forward
Rules of Court and laws of evidence. That conclusion could
have been reached by any lawyer upon a cursory review of the
document.

Rules of Court, Rule 644. See also: Shum v Mitchell, 2000 ABQB 323, [2000] A.J. No 522 at para 15;
affirmed by Robertson v Edmonton (City) Police Service (#11), 2005 ABQB 499, 2005 CarswellAlta 949;
Young v Young (1990), 1990 CanLII 3813 (BC CA) at paras. 81-101, [1990] BCJ No 2254 (QL), affirmed
by Young v Young [1993] 4 SCR 3, 1993 CanLII 34 (SCC).

[14] Furthermore, on November 30th last year, the respondents

offered not to pursue this application to strike the offending
paragraphs. Mr. DeRose, to his credit, gave Mr. Brogden a
chance to re-submit a properly drafted affidavit. He offered to
abandon their application upon receipt of the new document.
Nevertheless, Mr. Brogden forced on with this application. He
argued in court that the affidavit was fine. When I said to Mr.
Brogden that much of the affidavit was based on inadmissible
hearsay, he replied: I cant argue against that position. By
defending the indefensible, Mr. Brogden not only wasted
valuable court time and resources, he put the respondents to
unnecessary effort and expense. He also delayed
unnecessarily the progress of his clients action.
[15] Lawyers have an ethical and professional duty to ensure that
the advice they give a client, and the actions they take, are
proper. In other words, every lawyer has a duty to present the
case for their client in good faith, according to the Rules of
Court and the applicable law; in this case the laws of evidence.
An affidavit may be the sworn evidence of the client, but it is the
lawyers duty to ensure that the affidavit is drafted and
submitted according to the rules. In Canada, a lawyer who fails
in this basic duty runs the risk that costs shall be imposed
against him or her. 5
[16] If he did not know before he received Mr. DeRoses email on
November 30th, Mr. Brogden should have then taken a sober
second thought about the quality of his affidavits and materials.
He failed in his duty both to his client and to the court. This is
an appropriate case in which to order the lawyer to contribute to
the payment of the costs.
[17] This Court must presume that Mr. Brogden reviewed the
respondents concerns with his client. Ultimately, the plaintiff
client is in control of the litigation. The final decision whether to
pursue any particular action or tactic rests with the client. I must
presume that the plaintiff instructed Mr. Brogden to continue to
argue against the respondents application to strike.
Consequently, this Court rules that Adlair shares equal
responsibility with Mr. Brogden for the costs award.

JIM v DEC, 2014 SKQB 401 at para 43-46, 2014 CarswellSask 815.

IV. CONCLUSION
[18] I award the respondents $10,000 costs plus GST.
[19] I think it fair to give Mr. Brogden a chance to say why he should
not be ordered to share in the payment of the costs. Mr.
Brogden has ten business days from today to file written
submissions concerning this matter. Otherwise, I shall issue the
following order: that the payment of these costs be shared
equally between the plaintiff and its lawyer. $5,000 shall be paid
by Adlair and $5,000 shall be paid by Mr. Ed Brogden.

Dated at the City of Iqaluit this 14th day of September, 2016

___________________
Justice P. Bychok
Nunavut Court of Justice