Citation: Ayangma v. P.E.I. Human Rights Commission Date: PESCAD 20 Docket: AD-0863 Registry: Charlottetown

Transcription

1 Citation: Ayangma v. P.E.I. Human Rights Commission Date: PESCAD 20 Docket: AD-0863 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION BETWEEN: AND: NOËL AYANGMA APPELLANT THE P.E.I. HUMAN RIGHTS COMMISSION RESPONDENT Before: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid Appellant present and representing himself John K. Mitchell, Q.C. Counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island May 24, 2000 Charlottetown, Prince Edward Island June 19, 2000 Written Reasons by: The Honorable Chief Justice N.H. Carruthers Concurred in by:

2 The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid

3 Citation: Ayangma v. P.E.I. Human Rights Commission Date: PESCAD 20 Docket: AD-0863 Registry: Charlottetown NOËL AYANGMA APPELLANT AND THE P.E.I. HUMAN RIGHTS COMMISSION RESPONDENT (9 pages) Before: Carruthers, C.J.P.E.I.; Mitchell and McQuaid, JJ.A. Heard: May 24, 2000 Judgment: June 19, 2000 PRACTICE - COSTS - TAXATION OF COSTS - CERTIFICATE OF ASSESSMENT Appellant appealed from Certificate of Assessment. The appeal judge dismissed the appeal as he did not find the Prothonotary s assessment so unreasonable as to suggest any error in principle. Appellant then appealed to Court of Appeal. HELD: Appeal dismissed. Appeal judge did not commit any error in dismissing the appeal. CASES CONSIDERED: Baziuk v. BDO Dunwoody Ward Mallette (1997), 13 C.P.C. (4th) 156 (Ont.C.J.); Rogers v. Davies, [1932] S.C.R. 546 cp. 547; Fulton v. Mercantile Trust Co. of Canada Limited (1917), 41 O.L.R. 192 (Mulock, C.J.Ex.); Samulian v. Attrell Auto Holdings Ltd. (1994), 26 C.P.C. (3d) 75 (B.C.S.C.); Scales v. Square K Construction Co. (1979), 19 Nfld. & P.E.I.R. 36 (P.E.I.S.C.A.D.); Prince Edward Island v. Lewis (1993), 112 Nfld. & P.E.I.R. 111 (P.E.I.S.C.T.D.); Prince Edward Island v. Lewis (1994), 120 Nfld. & P.E.I.R. 166 (P.E.I.S.C.A.D.); Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317 STATUTES CONSIDERED: Human Rights Act, R.S.P.E.I. 1988, Cap. H-12; Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982,, s.15 RULES CONSIDERED: Prince Edward Island Rules of Civil Procedure, Rules

4 21.01(1)(b), 58.06(1) TEXTS CONSIDERED: Orkin, Mark M.: The Law of Costs, (2nd Ed., 1987) Noël Ayangma, representing himself John K. Mitchell, Q.C., for the respondent

5 CARRUTHERS C.J.: [1] This is an appeal from a decision of a judge of the Trial Division regarding an appeal he heard from a Certificate of Assessment of Costs issued by the Prothonotary. BACKGROUND [2] The total amount of costs involved in this matter and the nature of the appellant s submissions on this appeal require me to set out the background to this appeal in some detail in order that one may have some understanding of the issues raised by the appellant. It is important to bear in mind that the total amount of costs awarded to the respondent covers all of the respondent s involvement in this case as the respondent ceased to be a party to the action after the decision of the Motion Judge on October 21, [3] The appellant, who is a member of the visible minority community, applied for the position of Race Relations Consultant with the Provincial Department of Education. He did not receive a favourable response to his application. He had concerns about the manner in which the selection committee made its choice, and he expressed these concerns in the form of a complaint to the Prince Edward Island Human Rights Commission. The Human Rights Commission dismissed his complaint. [4] On March 3, 1997, the appellant commenced an action against the Government of Prince Edward Island, The Prince Edward Island Human Rights Commission (the Commission), and The Race Relations Advisory Committee seeking general, special and punitive damages from the defendants alleging that he suffered systemic discrimination in connection with the hiring process for the position of Race Relations Consultant. [5] The Race Relations Advisory Committee was noted in default on March 25, 1997, as it did not file a Notice of Intent to Defend or a Statement of Defence. [6] On April 22, 1997, a Motions judge set aside the Note of Default and allowed the Race Relations Advisory Committee time to file a defence. [7] On May 16, 1997, the Race Relations Advisory Committee filed a notice

6 Page: 2 of motion to have the appellant s claim against it dismissed on the basis it is not a suable entity. The appellant then sought the permission of the Court to substitute the names of Marian White, Claire Arsenault, Laura Lee Howard, and Eldon Rogerson as members of the Race Relations Advisory Committee. [8] On May 22, 1997, the motion was granted dismissing the claim against the Race Relations Advisory Committee and an Order was also granted whereby the appellant was granted leave to amend his statement of claim by adding Marian White, Claire Arsenault, Laura Lee Howard and Eldon Rogerson as defendants. [9] A case management conference was held on August 3, 1997, at which time the defendants raised preliminary issues of law for determination prior to trial. These issues were scheduled for hearing on February 2, 3, and 4, [10] On November 3, 1997, the appellant served notices of examination for discovery on the various defendants requiring them to appear for discovery examination commencing December 1, [11] The defendants then filed motions in November, 1997, seeking an order adjourning all discoveries until such time as the court had made a final determination with respect to the motions dealing with the preliminary issues of law scheduled to be heard in February, The Motions Judge granted the motions and ordered that the notices of examination be postponed to the first available date following final determination by the Court of the pre-trial motions being brought by the various defendants for summary judgment or the striking of the plaintiff s pleadings (in whole or in part) which were set down to be heard on February 2, 3, and 4, It was also ordered that costs be in the cause. [12] The defendants then each filed a notice of motion seeking an order striking out the amended statement of claim on the ground that it disclosed no reasonable cause of action pursuant to Rule 21.01(1)(b) of the Rules of Court. Each motion also sought the determination, before trial, of the following questions of law: (1) Is there a cause of action for determination separate and apart from the legislative scheme provided by the

7 Page: 3 Human Rights Act, R.S.P.E.I. 1988, Cap. H-12? (2) Is it possible for the Plaintiff to obtain a remedy under the Canadian Charter of Rights and Freedoms against each of the Defendants? (3) Does the Supreme Court of Prince Edward Island have jurisdiction in this matter apart from a proceeding for judicial review? All defendants, except the Commission, also raised the following question of law: (4) Is the plaintiff precluded, by reason of res judicata and/or issue estoppel, from claiming a remedy against the Defendant, Government of Prince Edward Island, given that the issue of discrimination has been dealt with to a conclusion pursuant to the process provided by the Human Rights Act, R.S.P.E.I. 1988, Cap.H-12? [13] Each defendant also sought an order dismissing the action on the ground the Court had no jurisdiction over the subject matter of the action. [14] The Commission and Marian White each filed a Factum and a joint factum was filed on behalf of The Government of Prince Edward Island and Eldon Rogerson. A joint factum was also filed on behalf of Claire Arsenault and Laura Lee Howard. One set of authorities was also filed on behalf of all the defendants. [15] These matters were heard on February 2 and 3, 1998, with additional material filed on June 5, 1998, and further submissions on September 22 and 30, Reasons for Judgment were released on October 21, The Motions Judge found as follows: 1. There is no common law cause of action for discrimination as the Legislature has foreclosed this avenue by enacting the Human Rights Act. 2. It is not possible for the plaintiff to obtain a remedy

8 Page: 4 against the Prince Edward Island Human Rights Commission under the Canadian Charter of Rights and Freedoms. 3. The Supreme Court of Prince Edward Island has jurisdiction in this matter, apart from a proceeding for judicial review, except for the Prince Edward Island Human Rights Commission. 4. The res judicata and estoppel arguments failed as the issue was not previously decided by a court of competent jurisdiction. 5. The cause of action against the defendants, The Prince Edward Island Human Rights Commission, Eldon Rogerson, Marian White, Claire Arsenault, and Laura Lee Howard was dismissed as they were not proper parties to the action. 6. The amended statement of claim as it relates to the claim against the Government of Prince Edward Island, discloses a cause of action and is not an abuse of process as it relates to a claim under s.15 of the Charter. 7. The Supreme Court of Prince Edward Island is the proper forum in which to adjudicate the claim against The Government of Prince Edward Island with respect to the claim under s.15 of the Charter. [16] The Motions Judge also made the following finding with respect to costs: The defendants, Prince Edward Island Human Rights Commission, White, Arsenault and Howard, shall have their costs to be taxed. As the defendant Rogerson was represented by the same counsel as the defendant government, no costs are allowed. The plaintiff s costs on this application shall follow the cause. [17] The Commission served the appellant on January 8, 1999, with a notice of appointment for assessment of costs and supporting documents. The assessment hearing was held before the Prothonotary on February 8, 1999, at which time the Prothonotary also heard from the appellant and the solicitors for the other defendants who had been awarded costs on the motion.

9 Page: 5 [18] On March 12, 1999, the Prothonotary issued a Certificate of Assessment on behalf of the Commission whereby he awarded costs in the amount of $13,600. together with $1, for disbursements, $1, for GST and $1, for PST, for a total of $17, [19] The appellant did not file an objection to the Certificate within the allowable time period and Judgment was entered on March 22, 1999, against the appellant for the amount of $17, It turned out the appellant had not been aware of the existence of the Certificate of Assessment, and therefore, had not had an opportunity to file a notice of objection. The appellant then presented a notice of motion seeking to have the judgment entered on March 22, 1999, set aside and sought leave to appeal the Certificate. [20] On June 7, 1999, the appellant served the Commission with a notice of appeal whereby the appellant appealed the assessment of costs. The appeal was heard on October 6, 1999, by a judge of the Trial Division. The appellant raised the fact that Certificates of Assessment had not been issued by the Prothonotary with respect to Marian White, Laura Lee Howard and Claire Arsenault. The appeal judge adjourned the hearing until these Certificates were issued. A certificate was granted on November 10, 1999, for Laura Lee Howard in the total amount of $18,564. A Certificate was granted on November 12, 1999, for Marian White in the total amount of $6, A Certificate was not granted regarding Claire Arsenault as she settled her costs with the Appellant. [21] The appeal judge then released his reasons for judgment on December 20, 1999, whereby he dismissed the appeal. He states in paragraph 21 of his reasons for judgment as follows (See Appeal Book, Tab 9, p.6): [21] As already stated, the appellant s objection relates to the amount of the costs stating the time spent by the respondent in preparing for the motions was excessive. I do not find that the Prothonotary s assessment is so unreasonable as to suggest an error in principle. In view of the complexity of the case, the time spent was reasonable. The appellant repeatedly made reference to the total amount of costs that were being taxed against him, which he stated are exorbitant. However, the taxation of the costs for the other defendants is not

10 Page: 6 really relevant here. Each set of costs must be looked at separately. Granted, when the second set of costs are considered by the Prothonotary, the appellant may well point out that certain items should be excluded because they have already been included in the respondent s costs and are an unnecessary duplication in the second set. [22] The appellant now appeals from the decision of the appeal judge. He alleges the Prothonotary s failure to issue all the Certificates of Assessment of Costs at the same time resulted in his failure to properly consider the roles of the multiple defendants. He submits the six defendants represented by four counsel were basically arguing the same issues and the Prothonotary did not properly consider the duplication of effort by counsel. He, therefore, raises the question as to whether there was an error in principle by the Prothonotary if he did not properly consider the roles of the multiple parties, and if so, did the appeal judge err in upholding the Prothonotary s Certificate of Assessment with respect to the Commission. ANALYSIS [23] As I have already indicated, I have set out the factual background to this appeal in some detail as the appellant submits the total amount of costs awarded as a result of the decision of the Motions Judge on October 21, 1998, is astronomical, exorbitant, excessive, unjustified and unfair. He submits the failure of the Prothonotary to consider all the taxations at the same time, along with the total amount of the costs awarded by him to the three defendants, constitutes an exceptional circumstance which allows this court to intervene. [24] The appellant also submits that success was divided on the motion as he achieved his goal of being allowed to pursue his complaint in court. He further submits he is willing to pay a reasonable amount of costs but he feels he is being asked to pay an amount far in excess of what he should be expected to pay. [25] One of the difficulties which arises on this appeal centers around the fact the appellant is a self-represented litigant who is involved in a fairly complex matter. The comments of Justice Platana of the Ontario Court of Justice, General Division, in Baziuk v. BDO Dunwoody Ward Mallette (1997), 13 C.P.C. (4th) 156 at p.162 regarding unrepresented parties bear repeating here:

11 Page: 7 The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to override the rights of a defendant party. [26] Section 53(1) of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10, provides that the costs of and incidental to all proceedings authorized to be taken in court or before a judge are, subject to any specific statutory provisions, in the discretion of a the court or judge. It also provides that the court or judge has full power to determine by whom and by what extent the costs shall be paid. [27] The Motion s Judge made the following award of costs in her Reasons for Judgment dated October 21, 1998 (see Appeal Book, Tab 5, p.20, paras.53 and 54): [53] The defendants, Prince Edward Island Human Rights Commission, White, Arsenault, Howard, shall have their costs to be taxed. As the defendant, Rogerson, was represented by the same counsel as the defendant government, no costs are allowed. [54] The plaintiff s costs on this application shall follow the cause. It is clear that the Motion s Judge exercised her discretion on costs and awarded each of the defendants, the Commission, White, Arsenault and Howard a separate bill of costs. The law is clear that each party has the right to retain counsel of their own choice. It is also clear that each party is entitled to a separate bill of costs unless the Motion s Judge exercises her discretion to just award one set of costs. She exercised her discretion in this case to award separate bills of costs. See Mr. Justice Rinfret in Rogers v. Davies, [1932]

12 Page: 8 S.C.R. 546 cp. 547; Fulton v. Mercantile Trust Co. of Canada Limited (1917), 41 O.L.R. 192 (Mulock, C.J.Ex.); Samulian v. Attrell Auto Holdings Ltd. (1994), 26 C.P.C. (3d) 75 (B.C.S.C.) at p.80. [28] The decision of the Motion s Judge to award separate bills of costs has not been challenged and the Prothonotary was bound by her decision when he was asked to tax the costs and issue Certificates of Assessment. The Prothonotary issued three separate Certificates of Assessment, but the only Certificate of Assessment on appeal to the appeal judge was the one dealing with the respondent Commission. It is the only Certificate of Assessment that is involved on the appeal to this Court. The real issue then on this appeal is whether the appeal judge erred in holding that the Prothonotary s assessment is not so unreasonable as to suggest an error in principle or in the words of Orkin, Mark M.: The Law of Costs, (2nd Ed., 1987), that the amount of costs is not so grossly large as to be beyond all question improper. [29] The appeal judge followed the widely accepted grounds for review as stated in Orkin, Mark M.: The Law of Costs, (2nd Ed., 1987), at pp.6-7 to 6.49: Grounds for Review 603.4(1) General It is a settled rule that on an appeal from the assessment officer the court is only concerned with questions of principle, and not with mere questions of amount, or the manner in which the assessment officer has exercised his discretion, unless the amounts are so inappropriate or the assessment officer s decision so unreasonable as to suggest an error in principle. It follows that the court will not interfere with the discretion of the assessment officer where the dispute involves no principle but only a question of amount unless the amount is so grossly large... as to be beyond all question improper... A motion to oppose confirmation is in the nature of an appeal.... that is to say, there should be no interference with the order below unless it is clearly wrong. The judge hearing the motion should not retry the matter or interfere with the result unless the reasons demonstrate some error in principle, or unless there has been some absence or excess of jurisdiction, or some patent misapprehension of the evidence. Moreover, the judge should not disturb the award unless it appears unsatisfactory on all the evidence. Although the appellate judge may disagree with the assessment officer s findings, or may have found

13 Page: 9 differently, the appellate judge is not permitted to substitute his or her view for those of the assessment officer. [30] See also p.6-50: 603.4(2) Quantum Whether the appeal is from an assessment of solicitor-and-client costs or party-and-party costs, generally speaking the discretion of the assessment officer as to quantum will not be interfered with; but the court is not precluded from interfering in very special circumstances, as where there was an obvious or gross error in fixing the amount, or where the assessment officer made a mistake in principle, or failed to exercise his discretion in a reasonable manner. Where the amount is so far away from what on any proper principle should be allowed, this may of itself be evidence of the application of a wrong principle. [31] These principles have been followed in this province in such cases as: Scales v. Square K Construction Co. (1979), 19 Nfld. & P.E.I.R. 36 (P.E.I.S.C.A.D.); Prince Edward Island v. Lewis (1993), 112 Nfld. & P.E.I.R. 111 (P.E.I.S.C.T.D.); Prince Edward Island v. Lewis (1994), 120 Nfld. & P.E.I.R. 166 (P.E.I.S.C.A.D.). [32] See Also: Bhatnager v. Canada (Minister of Employment and Immigration), [1991] 3 S.C.R. 317 at p.318. [33] These authorities clearly illustrate that the Court will not interfere with the discretion of a Taxing Officer on questions which involve the manner in which the Taxing Officer has exercised his discretion or on questions of amount unless the amount is so inappropriate or the Taxing Officer s decision is so unreasonable as to indicate that an error in principle must have been the cause. [34] The appeal judge reviewed the Prothonotary s assessment of the factors listed in Rule 58.06(1) of the Rules of Court, and he did not find any fault with the Prothonotary s consideration of these factors. Nor did he find any error in principle. He satisfied himself that the Prothonotary properly recognized and considered the fact the defendants embarked upon a joint effort in the preparation and presentation of their submissions before the Motion s Judge so as to avoid duplication of effort. He also found that in view of the complexity of the case, the time spent was reasonable and he dismissed the appeal. I am

14 Page: 10 unable to find that he committed any error in reaching his conclusion, and I would dismiss the appeal. [35] The costs do seem high and the respondent agrees that they are high. The mere fact they are high does not mean the Prothonotary erred in his assessment. A review of the facts in this case illustrates, I believe, why they are high. It seems to me there could have been more co-operation by the appellant with the defendants instead of having the court deal with so many issues. Such cooperation would have reduced the costs involved. It should also be kept in mind the costs awarded to the respondent were not just for the motion but cover all of the respondent s involvement in the case as it was no longer a party to the proceedings after the Motion Judge s decision of October 21, [36] I, therefore, dismiss the appeal and award the respondent its taxed costs on the appeal. [37] The appellant was granted a stay of proceedings in this matter on the condition that the sum of $18,123.20, which had already been paid into Court, remain in the jurisdiction of the Court until this appeal was disposed of by this Court. The respondent now submits this money ought to be paid out of Court in favour of the respondent. I agree with this submission. I, therefore, order that the sum of $18,123.20, together with accrued interest, be paid to the respondent. Carruthers The Honorable Chief Justice N.H. I AGREE: The Honorable Mr. Justice G.E. Mitchell I AGREE:

15 Page: 11 The Honorable Mr. Justice J.A. McQuaid