Date: 20010914
Docket: A-440-00
Neutral citation: 2001 FCA 267
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE BANK OF NOVA SCOTIA
Appellant
(Applicant)
- and -
SHELLEY ANN FRASER
Respondent
(Respondent)
Heard at Toronto, Ontario, Thursday, September 13, 2001
Judgment delivered from the Bench at Toronto,
Ontario, on Thursday, September 13, 2001
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20010914
Docket: A-440-00
Neutral citation: 2001 FCA 267
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
THE BANK OF NOVA SCOTIA
Appellant
(Applicant)
- and -
SHELLEY ANN FRASER
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, September 13, 2001)
SEXTON J.A.
This is an appeal from the order of the Trial Division dated June 1, 2000 dismissing an application for judicial review by the Bank of Nova Scotia from a decision of an adjudicator under the provisions of the Canada Labour Code.
The Respondent had filed a complaint of unjust dismissal against the Bank. The Adjudicator found that the Bank did not have just cause to terminate the Respondent's employment with the Bank and that the Bank's conduct was callous and cruel. He further found that the Bank's conduct was dishonest in that it had first made a decision to discharge the Respondent and then sought to find grounds to justify the discharge such as would bear scrutiny. He found that the Banks heavy handed conduct towards the Respondent extended not only to pre-litigation matters but also throughout the adjudication hearing. The Adjudicator in granting the Respondent an award, further awarded the Respondent costs on a solicitor-client basis.
The Trial Division dismissed the Bank's application concerning the award of costs and also awarded solicitor-client costs for that application. The Bank now appeals the award of costs both in front of the Adjudicator and before the Trial Division.
The Appellant argued that the question of costs awarded by the arbitrator is to be reviewed on a standard of correctness even though the award itself is to be reviewed on a standard of patent unreasonableness. We disagree that the standard of review with respect to costs should be different from the standard of review with respect to the award itself.
The Bank while conceding that an adjudicator has the jurisdiction under the Canada Labour Code to award solicitor-costs, nevertheless argues that such an award should only be made where the conduct complained of occurred during the litigation itself.
The Bank relies on a case in this Court, Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok (1988), 87 N.R. 178 at pp. 190-91 (F.C.A.), for the proposition that solicitor-client costs can only be awarded arising out of conduct during the litigation. We do not agree that the Banca case stands for this proposition. Justice Stone wrote:
An extraordinary award of this kind ought only to be made in circumstances that are clearly exceptional, as would be the case where an adjudicator wished thereby to mark his disapproval of a parties' conduct in a proceeding.
It is for the adjudicator to determine in the first instance the appropriateness of awarding solicitor-client costs. It is generally open to an adjudicator to select the basis on which costs will be awarded.
It is clear from Justice Stone's reasons that he did not intend to restrict the ability of the adjudicator to award solicitor-client costs to situations involving conduct which took place only during the course of the legal proceedings. It is clear from his reasons that he was simply giving an example of exceptional circumstances in which solicitor-client costs could be awarded.
Other case law is more explicit that solicitor-client costs may be awarded based on things other than conduct during the proceedings. In Styles v. British Columbia, 1989 B.C.J. No. 1450, (CA) the Court said:
Solicitor and client costs should not be awarded unless there is some form of reprehensible conduct either in the circumstances giving rise to the cause of action or in the proceedings which make such costs desirable as a form of chastisement.
Another reason for awarding solicitor-client costs is simply to save harmless an innocent litigant. In Goulin v. Goulin, 1995 O.J. No. 3115 at page 3, the Court said that:
Where one party has made allegations of fraud and wrongdoing that were not borne out and admittedly could not be borne out costs on a solicitor-client scale should be awarded. The point is to chastise or punish reprehensible conduct and to save harmless an innocent litigant from the otherwise unnecessary expense of litigation.
In the present case, the Adjudicator found that the Bank had made allegations of improper conduct against the Respondent. His finding that these allegations were an attempt to justify its prior decision to dismiss the Respondent shows that the allegations were totally without foundation. In circumstances such as these an award of solicitor-client costs for that reason alone would be justified.
However, the Adjudicator found that the conduct of the Bank extended not only prior to the hearing but throughout the adjudication hearing. That conduct included serious allegations of dishonesty on the part of the Respondent made by the Bank in presenting its case to the arbitrator. The Respondent was subjected to two days of searching and detailed cross-examinations with respect to those allegations. Nonetheless, her evidence was found by the Adjudicator to be unshaken Thus, even if the Bank were correct in its argument as to the interpretation of the Banca case, the award of solicitor-client costs can be justified.
The Trial Judge in awarding solicitor-client costs before him, said that the Respondent should not have been put to the expense of defending the application. In our view, a court is justified in looking at the parties' conduct in the first instance in awarding costs on judicial review or appeal. Where a litigant's conduct has warranted solicitor-client costs at trial and the litigant appeals that very order, it only seems appropriate that, that litigant bear the full costs of losing that appeal upon failure. Otherwise, the object of saving a litigant from "being put to the expense of defending" a case would be frustrated by the other party's continuous appeals.
We therefore can find no error in the decision of the Trial Judge to award solicitor-client costs to the Respondent. We also are of the view that the Respondent should not have been put in the position of defending the present appeal. Consequently, we would dismiss this appeal with costs on a solicitor-client basis.
"J. E. Sexton"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-440-00
STYLE OF CAUSE: THE BANK OF NOVA SCOTIA
Appellant
(Applicant)
- and -
SHELLEY ANN FRASER
Respondent
(Respondent)
DATE OF HEARING: THURSDAY, SEPTEMBER 13, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DATED: FRIDAY, SEPTEMBER 14, 2001
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON THURSDAY, SEPTEMBER 13, 2001.
APPEARANCES BY: Mr. Christopher G. Riggs, Q.C.
For the Appellant
Mr. Howard Goldblatt
For the Respondent
SOLICITORS OF RECORD: Hicks Morley Hamilton Stewart Storie
Barristers & Solicitors
Thirtieth Floor
Toronto-Dominion Tower
Box 371, T-D Centre
Toronto, Ontario
M5K 1K8
For the Appellant
Sack Goldblatt Mitchell
Barristers & Solicitors
20 Dundas Street West
Suite 1130, P.O. Box 180
Toronto, Ontario
M5G 2G8
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20010914
Docket: A-440-00
BETWEEN:
THE BANK OF NOVA SCOTIA
Appellant
(Applicant)
- and -
SHELLEY ANN FRASER
Respondent
(Respondent)
REASONS FOR JUDGMENT
OF THE COURT