Decision Excerpts with Emphasis Added follows

Citation:     Cabana v Newfoundland and Labrador et al., 2016 NLCA 75 (CanLII), <http://canlii.ca/t/gwlf7>, retrieved on 2016-12-31

[1]            This matter involves the taxation of a bill of party and party costs payable to Mr. Brad Cabana pursuant to a decision of this Court following an appeal in which the Court set aside rulings of a judge of the Trial Division relating to: (i) a refusal to recuse herself; and (ii) a refusal to grant an interim injunction application. (Cabana v. Newfoundland and Labrador, 2014 NLCA 34 (CanLII).)

[2]            Mr. Cabana, a self-represented litigant, sued the provincial Crown, Nalcor Energy Inc. and the Innu Nation of Labrador seeking an injunction restraining development of the Muskrat Falls hydro-electric project in Labrador without first holding a provincial referendum. As an interim measure, he also sought an interim injunction against the Crown and Nalcor. By order of the Trial Division, this application was turned into an application for a declaration rather than an injunction because of the inability of the Crown to be subjected to an injunctive order. See Proceedings Against the Crown Act, RSNL 1990, c. P-26, s. 15.

[3]            At the hearing of the application for a declaration, Mr. Cabana asked the presiding judge to recuse herself, citing a number of grounds. The judge rejected all grounds and continued to sit on the merits of the interim application, ultimately dismissing it.

[4]            Mr. Cabana filed a notice seeking leave to appeal both the judge’s failure to recuse herself and the dismissal of the declaration application. Leave was granted and the appeal was heard. The Innu Nation did not participate in the appeal.

[5]            This Court rejected Mr. Cabana’s grounds of appeal with respect to the judge’s refusal to recuse herself but nevertheless concluded that certain other actions and statements by the judge during the course of the recusal hearing did raise a reasonable apprehension of bias. As a result, the appeal of the decision not to recuse was allowed on this ground and, as well, the judge’s subsequent decision on the merits of the declaration action was set aside.

[6]            The costs order made by the Court was as follows:

[56] Mr. Cabana shall have his costs in this Court, including the decision regarding leave to appeal (2014 NLCA 1 (CanLII)) and in the Court below, including the decisions regarding the recusal application (2013 NLTD(G) 36) and the interim injunction application (2013 NLTD(G) 115) as against the Crown and Nalcor. The Innu Nation of Labrador shall bear its own costs in both Courts.


[12]        I conducted the taxation as a hearing before a single judge of the Court of Appeal. Mr. Cabana represented himself. The Crown was represented by counsel. Even though by the terms of the Court’s order mentioned previously, Nalcor is subject to any costs order that is to be made, Nalcor did not appear but signified its acknowledgement that it will be bound by any such determination.

The Bill of Costs

[13]        Mr. Cabana submitted a bill of costs totaling $95,462.43. It is annexed to these reasons as Schedule “A”. Counsel for the Crown submits that Mr. Cabana is only entitled to the sum of $12,705.67. His position is also set out on an item by item basis on Schedule “A”.

[14]        Prominent among the items in dispute are claims for (i) lost opportunity cost as a result of Mr. Cabana having to spend time on preparing for and making submissions as a self-represented litigant at the hearing in the Trial Division and the Court of Appeal, and the related claim that he should be entitled to amounts equivalent to counsel fees according to the relevant costs tariff; (ii) interest on money borrowed to finance the litigation; (iii) travel costs, including air fare, car rental and meals.

[15]        I will not deal with other items except to say that they are taxed and allowed at the amounts claimed by Mr. Cabana.


[20]        Mr. Cabana represented himself through the relevant portions of the litigation. He therefore did not incur any counsel fees against which a costs award would normally, at least partially, indemnify him. Mr. Cabana says, however, that if he had been able to engage counsel, he would have been able to continue to engage in his business interests and generate income therefrom. As a result of having to represent himself and attend at and participate in all the litigation hearings himself, he could not continue to generate that income. His loss in that regard is, he submits, a direct result of the various court applications and hearings related to the injunction and recusal applications.

[21]        Mr. Cabana submits that this loss of income resulting from his efforts to vindicate his legal rights is effectively, for a self-represented litigant, the equivalent of the cost of hiring a lawyer for the legally-represented litigant. He should therefore, he says, be equally entitled to be compensated in costs for this loss.  He claims $57,893 in that regard. He also says that, additionally, he should be entitled to the equivalent of the counsel fee allowed to a successful litigant, calculated according to Column 3 of the Scale of Costs appended to the rules of court. He calculates this amount at $16,250.

[22]        In support of his submissions, Mr. Cabana adds another argument based on fairness. He points out that if an unrepresented litigant loses, he or she will have to face the prospect of paying the other side’s costs, including counsel fees, but if he wins, the other side will not, unless he can be made subject to an equivalent order for lost opportunity cost, face the same consequences. This situation upsets the normal balance between the effects of litigation costs and access to justice. A represented party (especially, as here, a government party with effectively unlimited funds) facing an unrepresented litigant will not have the same incentive to consider carefully the legal costs of proceeding with or settling the litigation but may be more encouraged to proceed even in a weak case in the hope of taking advantage of the other side’s impecuniosity and “starve him out”. Such a situation would work against access to justice for unrepresented litigants and would weaken the objectives of costs awards which include, in addition to indemnification, deterrence of frivolous and abusive litigation and promoting early settlement.


[36]        Accordingly, I hold that in principle a successful self-represented litigant may claim, as part of taxed costs, an amount representing at least a portion of the time and effort he or she put into the case in the place of that which otherwise would have been expended on the case by a lawyer had one been retained.

[37]        The question next becomes: how should the court or taxing officer approach the calculation of the amount to which the self-represented litigant should be entitled in that regard?


[41]        Having said that, I would emphasize that the award of costs is in the end a discretionary exercise and that there may well be circumstances that would justify making an award in favour of a self-represented litigant in an amount lower or greater than by sole reference to the tariff. Circumstances such as the complexity of the proceeding or lack thereof, the amount and quality of the work done by the self-represented litigant, the significance of the case and the role that the litigant played would all be relevant considerations.

[42]        Applying this analysis to Mr. Cabana’s case, I note that he prepared and conducted the whole case himself. It is evident from the material submitted and relied on by him, that he undertook considerable research into and study of legal materials that he deemed relevant to the case. It was evident from his appearance on the hearing of this matter that he acted in a serious, respectful and thoughtful manner and made intelligent arguments on the law and facts. He acted as his own counsel, in the true sense of the word. His participation in the preparation for and conduct of the hearings can be said to be equivalent to the type of work that legal counsel would have been expected to undertake if he had been represented.

[43]        In these circumstances, I am prepared to allow Mr. Cabana an amount calculated on the Scale of Costs using Column 2 as a general guide. I chose column 2 to recognize that the effort was competent and significant, while at the same time recognizing that the nature of the work, as informed and carefully presented as it was, does not reach the level of a professionally- trained lawyer.  Applying Column 2 to the items listed by Mr. Cabana in Tab 2 attached to his affidavit filed in support of his application (instead of Column 3 which he claimed) and making certain adjustments for certain disallowed items such as travel which is dealt with elsewhere in his claim, I calculate the amount to which he should be entitled in this regard to be $10,825.00.


[58]        Mr. Cabana claims travel costs of $ 2,574.79 for airfare, $2,795.99 for hotels, $255 for taxis, $227.16 for car rental, $4, 147.20 for mileage for travel to and from Hickman’s Harbour and $1,122.00 for meals. The Crown concedes the claims for hotels, taxis and mileage but opposes the ones for airfare, car rental and meals.

[59]        The relevant provision in our rules allows disbursements for “reasonable travel expenses of counsel, including meals and lodging, where counsel fee is allowed…” (rule 55, Appendix, VIII.1(i)). The limit of the expenses being “of counsel” must be read in light of the previous ruling that Mr. Cabana is entitled to an amount that is equivalent to counsel fee if he had been able to engage one. It would be anomalous not to allow him the sorts of expenses that would normally be allowed as part of counsel’s activities if counsel had been retained.


Decision on Taxation

[65]        The amounts awarded to Mr. Cabana, or disallowed as the case may be, in respect each of the heads of claim in his submitted Bill of Costs are set out on Schedule “A” annexed to these reasons. His claim is taxed and allowed in total in the amount of $25,360.94.


Costs on Taxation

[66]        Both parties were successful on aspects of this taxation. The original amount claimed by Mr. Cabana has been substantially reduced. However, the most significant aspect of this case – and the one that has taken the most time and was opposed most vigorously by the Crown – is the one related to whether a self-represented litigant is entitled to an award of costs in the nature of counsel fees. On the point of principle, Mr. Cabana was successful in convincing the court to proceed in a new direction on that issue. In light of that I am prepared to award him costs on a party and party basis in respect of this hearing. To avoid further delay and yet a further hearing I am prepared, taking into account the length of the hearing and estimating the amount of material that Mr. Cabana prepared and submitted to the Court, to fix those costs at $2,000.

 [67]        The total amount recoverable for the taxed amounts as well as the costs on this taxation is therefore $27,360.94.  Mr. Cabana shall have an order for payment of this amount.
                                                                                                                 

                                                                           J.D. Green C.J.N.L.


 

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