Anstey v. St. John's (City), 2014 NLCA 35

• Judge: Green, C.J.N.L., White and Hoegg, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 15, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: 2014 NLCA 35;(2014), 356 Nfld. & P.E.I.R. 117 (NLCA)

Anstey v. St. John's (2014), 356 Nfld. & P.E.I.R. 117 (NLCA);

    1108 A.P.R. 117

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. OC.020

Robert B. Anstey (appellant) v. City of St. John's (respondent)

(14/27; 2014 NLCA 35)

Indexed As: Anstey v. St. John's (City)

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L., White and Hoegg, JJ.A.

October 8, 2014.

Summary:

Anstey acted as solicitor for the owners of six properties in relation to their sale to the City of St. John's. As part of the compensation payable to the owners, the City agreed to pay Anstey's "reasonable legal fees", directly to Anstey. On the closing date, Anstey disbursed the purchase funds without, allegedly, fully complying with the tax certificate trust condition. The City refused to pay Anstey's fees ($5,171.70). Anstey filed the Taxing Masters certificate (allowing his account) as a judgment, and instructed the Sheriff to issue a garnishee order attaching the City's bank account. The garnishee remitted the money to the Sheriff. The City applied for a stay in the garnishee order. At the hearing, the City asked that the money be paid into court. Anstey resisted the application, and sought solicitor-client costs.

The Newfoundland and Labrador Supreme Court, Trial Division (General), ordered that "the sum of $5,171.70 now in possession of the Sheriff in relation to Robert B. Anstey shall be paid into this Court." The judge did not address costs. Anstey appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal. The City had no basis for refusing to comply with the judgment that was entered upon filing of the Taxing Master's certificate. The City's stated reason for not paying was based on an unreasonably held misconception of the nature of the relationship between Anstey and the City. Given his success, Anstey was entitled to his costs on the original application ($1,000) as well as on the appeal ($1,500). This was not a case for awarding costs on a solicitor-client basis, or for the award of punitive damages.

Barristers and Solicitors - Topic 1504

Relationship with client - General - Solicitor-client relationship - What constitutes - [See Creditors and Debtors - Topic 4441 ].

Barristers and Solicitors - Topic 1701

Relationship with client - Property transactions - General - [See Creditors and Debtors - Topic 4441 ].

Barristers and Solicitors - Topic 3001.1

Compensation - General - Certificate of fees (incl. setting aside) - [See Creditors and Debtors - Topic 4441 and Creditors and Debtors - Topic 4607 ].

Barristers and Solicitors - Topic 3404

Compensation - Particular matters - Property transactions - [See Creditors and Debtors - Topic 4441 and Creditors and Debtors - Topic 4607 ].

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Courts - Topic 592 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - The Newfoundland and Labrador Court of Appeal held that the judge in this case did not demonstrate the degree of impartiality and open mindedness that was to be expected of a judicial decision-maker - "The duty of a judge is to listen to the relevant arguments of both sides fairly before making up one's mind on the outcome. ... An application hearing is not a paper hearing. Oral advocacy is still a vital part of the process. A review of the transcript makes it clear that the judge had a fixed idea of what he thought should be done before he was prepared to hear from [the appellant, a former solicitor]. ... In the circumstances, the judge gave the impression of having a closed mind. ... While a judge does not have to give reasons that deal with every point made by counsel, and his reasons may be garnered from the context, the context may also require some degree of acknowledgement at least that the points of argument have been heard and considered. In this case, the judge did not do this." - See paragraphs 47 to 54.

Creditors and Debtors - Topic 4381.1

Garnishment by creditor - Payment by garnishee into court or to sheriff - Effect of - The money ordered to be paid into court related to money garnished by the Sheriff in the City's bank account - The City had sought a stay of enforcement proceedings in its written application, and then asked in its oral submissions that the money be either paid into court or that the Sheriff be ordered not to disburse the money - The judge did not expressly order a stay - The Newfoundland and Labrador Court of Appeal stated that "In any event, the practical effect of ordering payment into court was to stay immediate enforcement. The justification for payment-in comes from a conclusion that an order would facilitate or further the purpose of a stay of enforcement. It is necessary, therefore, to consider the appropriateness of payment into court in the context of whether a stay should have been granted. Without a stay, there would have been no justification for delaying completion of the garnishee process by payment into court or by some other means. ... [A]lthough the City did not expressly ground its stay application on s. 149 [of the Judgment Enforcement Act], and the judge did not refer to it, that is the basis on which the justification for a stay in this case must be considered. It has direct application to the circumstances presented by this case." - See paragraphs 23 to 29.

Creditors and Debtors - Topic 4391

Garnishment by creditor - Payment by garnishee into court or to sheriff - Power of court - [See Practice - Topic 3251 ].

Creditors and Debtors - Topic 4441

Garnishment by creditor - Defences - General - Anstey acted as solicitor for the owners of six properties in relation to their sale to the City - As part of the compensation payable to the owners, the City agreed to pay Anstey's "reasonable legal fees", directly to Anstey - The Taxing Master valued Anstey's services in the amount of $5,171.70 (unappealed) - The City refused to pay - The amount was entered as a judgment (unappealed) - Anstey issued a garnishee order - The City's position was that it should not have to pay until the transaction was "completed"; i.e., the provision of clear tax certificates - The Newfoundland and Labrador Court of Appeal held that the notion that Anstey had not "completed" the transaction, as a justification for not paying him, was based on a false premise - The enforcement of closing trust conditions was a separate matter - It was customary for solicitors acting for a seller on a real estate transaction to be paid regardless of whether, as between the solicitor an the purchaser's solicitor, closing trust conditions remained outstanding and would be satisfied at a later date - To do otherwise would be to treat the relationship between Anstey and the City as one of solicitor and client, which it was not - See paragraph 38.

Creditors and Debtors - Topic 4607

Garnishment by creditor - Practice - Stay of garnishing order - Anstey acted as solicitor for the owners of six properties in relation to their sale to the City - The City agreed to pay Anstey's "reasonable legal fees", directly to Anstey - The Taxing Master valued Anstey's services in the amount of $5,171.70 - The City refused to pay - The amount was entered as a judgment - Anstey issued a garnishee order under the Judgment Enforcement Act (the Act) - The City applied for a stay of the garnishee order - The trial judge ordered the sum of $5,171.70 be paid into court, effectively staying immediate enforcement - The Newfoundland and Labrador Court of Appeal held that the basis for a stay under s. 149 of Act was not present - (1) The City failed to establish that there was a serious issue with respect to Anstey's entitlement to be paid forthwith - (2) The City had not demonstrated it would suffer irreparable harm - It still remained open to the City to recover payment of the taxes from the sellers - The City also had the remedy of suing Anstey on his alleged undertaking - There was no duty of care in negligence owed by Anstey to the City - Invocation of the Court's stay procedure was not integral to the protection of the City's interests - (3) It could not be said that the City would suffer the greater harm if a stay were not granted - It could have achieved its objective without a stay - See paragraphs 32 to 45.

Damages - Topic 1297

Exemplary or punitive damages - Conditions precedent (or when awarded) - The Newfoundland and Labrador Court of Appeal stated that "Punitive damages awards are very much the exception rather than the rule. Furthermore, they are generally awarded, at least in a contractual context, as an addition to compensatory damages and must be supported by an independent cause of action ... . While the tort of abuse of legal process may be regarded as an independent wrong for this purpose it has limited application because of the requirement that the legal process be involved for a collateral and improper purpose and involve an overt act or threat in furtherance of an illegitimate purpose." - See paragraph 65.

Damages - Topic 1299.1

Exemplary or punitive damages - Abuse of process - Anstey acted as solicitor for the owners of six properties in relation to their sale to the City - The City agreed to pay Anstey's legal fees - The Taxing Master valued his services in the amount of $5,171.70 - The City refused to pay - The amount was entered as a judgment - Anstey issued a garnishee order - The City applied for a stay of the garnishee order - The trial judge ordered the sum of $5,171.70 be paid into court - Anstey appealed and asked for punitive damages of $2,000 - The Newfoundland and Labrador Court of Appeal allowed the appeal, but declined to award punitive damages - "While the approach of the City in this case in seeking a stay of enforcement can be characterized as unnecessary or even unreasonable and may have delayed Mr. Anstey unnecessarily in recovery of the fees which the City undertook to pay, it cannot be described as malicious, oppressive or high-handed or undertaken for a collateral or improper purpose. Accordingly, this is not a case for the award of punitive damages." - See paragraph 66.

Practice - Topic 3251

Payment of money into court - General principles - General - The issue on this appeal was whether a judge erred in the exercise of his discretion when he ordered money subject to a garnishee order to be paid into court - The Newfoundland and Labrador Court of Appeal stated that "there are many diverse circumstances in which a court may order money to be paid into court, thereby making the funds in custodia legis. Payment into court is an administrative mechanism to be employed to achieve another judicial or legal objective. ... Although many differing circumstances are referred to in the rules of court, the court also has an inherent jurisdiction to order that funds be paid into court to await the outcome of pending litigation or to prevent fraud or abuse of court process ... In each case, the objective of ordering payment into court is to maintain neutral control over the money paid in so as to facilitate the conclusion of some other juridical act in a fair and equitable manner. The only limitation on the exercise of the jurisdiction to order payment into court is that it has to purport to advance the objective, or be within the purpose, of the other contemplated legal act in relation to which the money was initially paid in." - See paragraphs 20 to 22.

Practice - Topic 3253

Payment of money into court - General principles - Purpose or object - [See Practice - Topic 3251 ].

Practice - Topic 3271

Payment of money into court - When available - General - [See Practice - Topic 3251 ].

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - [See Creditors and Debtors - Topic 4381.1 ].

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - Anstey acted as solicitor for the owners of six properties in relation to their sale to the City - The City agreed to pay Anstey's legal fees - The Taxing Master valued Anstey's services in the amount of $5,171.70 - The City refused to pay - Anstey filed the Taxing Masters certificate (allowing his account) as a judgment, and instructed the Sheriff to issue a garnishee order - The City applied for a stay of the garnishee order - At the hearing, the City asked that the $5,171.70 be paid into court - Anstey resisted the application, and sought solicitor-client costs - The judge ordered the money to be paid into court - The Newfoundland and Labrador Court of Appeal allowed the appeal and awarded a gross sum in lieu of taxed costs - The small amount of money at issue and the delays that had already prevented Anstey from receiving his fees justified the Court fixing the costs - The City's stated reason for not paying was unreasonable - Rule 55.02(1)(a) gave a broad discretion to the Court - "[I]n awarding costs on a gross sum basis pursuant to rule 55.02(1)(a), the court does not engage in a precise calculation of the amount according to the scale of fees applicable on taxation. Furthermore, to the extent to which the conduct of the City is nevertheless deserving of disapproval, short of a justification for solicitor-client costs, that can be accomplished by factoring that into the calculation of a gross sum award." - In the end result, the Court awarded an amount of $1,000 with respect to the application in the Trial Division, and an amount of $1,500 on this appeal - See paragraphs 55 to 63.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - The issue on this appeal was whether a judge of the Trial Division erred in the exercise of his discretion when he ordered money subject to a garnishee order to be paid into Court - The Newfoundland and Labrador Court of Appeal stated that "[t]he standard of appellate review with respect to the merits of the judge's decision in a case such as this is a deferential one. The Court will only review the exercise of a discretionary decision to determine whether it has been exercised judicially within jurisdiction, according to proper legal principle, without palpable and overriding error in appreciation of the relevant facts and applicable considerations, and without having caused a manifest injustice" - See paragraph 18.

Cases Noticed:

Tremblett v. Tremblett (2013), 340 Nfld. & P.E.I.R. 135; 1057 A.P.R. 135; 2013 NLCA 53, refd to. [para. 18].

Langor v. Spurrell (1997), 157 Nfld. & P.E.I.R. 301; 486 A.P.R. 301 (Nfld. C.A.), refd to. [para. 18].

Penney v. Canadian Imperial Bank of Commerce (1996), 145 Nfld. & P.E.I.R. 355; 453 A.P.R. 355 (Nfld. T.D.), refd to. [para. 21].

Bank of Montreal v. House (H.O.) Ltd. (1978), 15 Nfld. & P.E.I.R. 33; 38 A.P.R. 33 (Nfld. C.A.), refd to. [para. 43].

Cabana v. Newfoundland and Labrador et al. (2014), 356 Nfld. & P.E.I.R. 103; 1108 A.P.R. 103; 2014 NLCA 34, refd to. [para. 48].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 57].

T.Y. v. A.M., 2013 NLCA 48, refd to. [para. 57].

Newfoundland and Labrador Housing Corp. v. Humby et al. (2013), 331 Nfld. & P.E.I.R. 201; 1027 A.P.R. 201; 2013 NLCA 7, refd to. [para. 57].

Colt Engineering and Construction Ltd. v. Bond Architects & Engineers Ltd. et al. (1996), 140 Nfld. & P.E.I.R. 45; 438 A.P.R. 45 (Nfld. C.A.), refd to. [para. 58].

Abitibi-Price Inc. v. Voith Hydro Inc. et al. (1993), 115 Nfld. & P.E.I.R. 183; 360 A.P.R. 183 (Nfld. T.D.), refd to. [para. 58].

Dawson (City) v. TSL Contractors Ltd. et al. (2003), 180 B.C.A.C. 205; 297 W.A.C. 205; 47 B.C.L.R.(5th) 282; 2013 BCCA 344 (Yuk. C.A.), refd to. [para. 61].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 65].

Potash Corp. of Saskatchewan Inc. et al. v. Barton (2013), 427 Sask.R. 206; 591 W.A.C. 206; 2013 SKCA 141, refd to. [para. 65].

Statutes Noticed:

Judgment Enforcement Act, S.N.L. 1996, c. J-1.1, sect. 111(d) [para. 25]; sect. 112(1) [para. 8]; sect. 149(1), sect. 149(2) [para. 27]; sect. 159, sect. 163 [para. 26].

Judicature Act, R.S.N.L. 1990, c. J-4, sect. 149 [para. 28].

Rules of Court (Nfld.), Supreme Court Rules, rule 55.02(1)(a) [para. 58].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2nd Ed. 1987), para. 202.5 [para. 59].

Counsel:

Robert B. Anstey, appellant, self-represented;

Linda Bishop, for the respondent.

This appeal was heard on September 15, 2014, before Green, C.J.N.L., White and Hoegg, JJ.A., of the Newfoundland and Labrador Court of Appeal. In reasons written by Green, C.J.N.L., the Court delivered the following judgment, dated October 8, 2014.