Bonitto v. Halifax School Bd., 2015 NSCA 3

Judge:Farrar, J.A.
Court:Nova Scotia Court of Appeal
Case Date:January 08, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 3;(2015), 353 N.S.R.(2d) 9 (CA)
 
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Bonitto v. Halifax School Bd. (2015), 353 N.S.R.(2d) 9 (CA);

    1115 A.P.R. 9

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.015

Sean Bonitto (appellant) v. Halifax Regional School Board (respondent)

(CA 431358; 2015 NSCA 3)

Indexed As: Bonitto v. Halifax Regional School Board

Nova Scotia Court of Appeal

Farrar, J.A.

January 13, 2015.

Summary:

The Nova Scotia Supreme Court dismissed Bonitto's action against the Halifax Regional School Board (2014 NSSC 311). Bonitto, a fundamentalist Christian, claimed a constitutionally protected right under ss. 2(a) and (b) of the Charter (freedom of expression and freedom of religion) to distribute religious literature (gospel tracts from the Bible) to students and others on school grounds during school hours. Damages of $85,000 had been claimed, but none were provisionally assessed. The School Board sought party and party costs amounting to $19,875.

The Nova Scotia Supreme Court, in a judgment reported 353 N.S.R.(2d) 1; 1115 A.P.R. 1, awarded $13,500 in costs, plus disbursements, based on an "amount involved" of $60,000 (per diem rate of $20,000), Scale 2 of Tariff A, and $2,000 per trial day. The Court declined to exercise its discretion to increase the costs award because of Bonitto's failure to accept the School Board's offer to settle. While the excessive monetary claim removed Bonitto from the category of public interest litigant, the proceeding did satisfy other public interest litigant factors. Bonitto appealed the dismissal of his action and the costs award. He moved to stay the costs order pending the appeal. The school board moved for security for costs.

The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed both motions.

Practice - Topic 8112

Costs - Security for costs - General principles - Where plaintiff insolvent or impecunious - Bonitto, a fundamentalist Christian, claimed a constitutionally protected right under ss. 2(a) and (b) of the Charter (freedom of expression and freedom of religion) to distribute religious literature (gospel tracts from the Bible) to students and others on school grounds during school hours - His action was dismissed and costs were awarded against him - Bonitto appealed the dismissal of his action and the costs award - He moved to stay the costs order pending the appeal - The school board moved for security for costs - The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed both motions - The grounds of appeal raised arguable issues - The basis for Bonitto's irreparable harm claim was that his impecuniosity would lead to financial ruin if he was forced to pay the costs prior to the appeal - There was no question concerning the school board's ability to repay any costs award should Bonitto win on appeal - Bonitto failed to establish irreparable harm where he provided scant evidence of his income and no evidence of any property, real or personal, that would be seized - Finally, Bonitto failed to establish exceptional circumstances warranting a stay of the costs order - In any event, the court would have denied the motion on the ground that Bonitto did not come to the court with clean hands - Bonitto continued to distribute religious materials at the school in clear defiance of the trial decision - The court declined to order Bonitto to post security for costs, as his impecuniosity would prevent him from paying security and deny him his right of appeal.

Practice - Topic 8304

Costs - Appeals - Appeals from order granting or denying costs - Stay of execution - [See Practice - Topic 8112 ].

Practice - Topic 8969

Appeals - Stay of proceedings pending appeal - Stay of costs order - [See Practice - Topic 8112 ].

Cases Noticed:

Fulton Insurance Agencies Ltd. v. Purdy (1991), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), refd to. [para. 25].

Giffin v. Soontiens et al. (2011), 297 N.S.R.(2d) 316; 943 A.P.R. 316; 2011 NSCA 1, refd to. [para. 27].

R. v. Innocente (D.J.) et al. (2001), 194 N.S.R.(2d) 183; 606 A.P.R. 183; 2001 NSCA 97, refd to. [para. 31].

E.B.F. Manufacturing Ltd. et al. v. White et al., [2005] N.S.R.(2d) Uned. 71; 2005 NSCA 103, refd to. [para. 47].

Geophysical Services Inc. v. Sable Mary Seismic Inc. et al. (2011), 304 N.S.R.(2d) 178; 960 A.P.R. 178; 2011 NSCA 40, refd to. [para. 55].

Counsel:

Appellant in person;

Sheree L. Conlon, for the respondent.

These motions were heard on January 8, 2015, at Halifax, N.S., in Chambers before Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on January 13, 2015.

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