Cowan et al. v. Aylward et al., (2001) 193 N.S.R.(2d) 111 (SC)

• Judge: Scanlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 01, 2001
• Jurisdiction: Nova Scotia
• Citations: (2001), 193 N.S.R.(2d) 111 (SC);2001 NSSC 51

Cowan v. Aylward (2001), 193 N.S.R.(2d) 111 (SC);

 602 A.P.R. 111

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. AP.014

James Cowan, Chair of the Board of Governors of Dalhousie University; Tom Traves, President of Dalhousie University; and Dawn Russell, Dean, Faculty of Law, Dalhousie University (applicants) v. Carol Aylward, the Nova Scotia Human Rights Commission; the Ombudsman of the Province of Nova Scotia; and the Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (respondents)

(SH166929; 2001 NSSC 51)

Indexed As: Cowan et al. v. Aylward et al.

Nova Scotia Supreme Court

Scanlan, J.

April 2, 2001.

Summary:

Aylward filed a complaint against Dalhousie University, its law school et al. ("University") with the Nova Scotia Human Rights Commission. She submitted that the Commission might have a conflict of interest. The Commission decided to refer the matter to the Ombudsman and the Ontario Human Rights Commission. The University advised of its concern respecting the Commission's lack of authority to delegate. The Commission vigorously opposed the University's suggestion, but finally acknowledged a lack of jurisdiction. Aylward opposed a consent order quashing the referral. The matter therefore had to be dealt with by the court. The court determined that the Commission lacked authority to delegate. The University, Aylward and other interested parties all incurred substantial costs in having the Commission's jurisdiction determined. They sought costs against the Commission.

The Nova Scotia Supreme Court awarded costs to the University and the interested parties on a party and party basis. Solicitor and client costs were not warranted. Aylward was not entitled to costs.

Civil Rights - Topic 7108

Federal or provincial legislation - Practice - Costs - Aylward filed a complaint against Dalhousie University et al. ("University") with the Nova Scotia Human Rights Commission - She submitted that the Commission might have a conflict of interest - The Commission decided to refer the matter to the Ombudsman and the Ontario Human Rights Commission - The University advised of its concern respecting the Commission's lack of authority to delegate - The Commission vigorously opposed the University's suggestion, but finally conceded its lack of jurisdiction - The court determined that the Commission lacked jurisdiction - The University et al. had incurred substantial costs in having the matter determined - They sought costs against the Commission - The Nova Scotia Supreme Court awarded costs where the Commission was more than an adjudicating body, it became a litigant - Huge expenses could have been avoided by an earlier concession of lack of jurisdiction - The court awarded party and party costs in an amount reflecting a real and substantial contribution to the actual costs expended - However, the Commission's conduct did not warrant solicitor and client costs.

Practice - Topic 7033

Costs - Party and party costs - Entitlement to - Actions respecting statutes or tribunals - [See Civil Rights - Topic 7108 ].

Practice - Topic 7051

Costs - Party and party costs - Entitlement to - Nonparty - Aylward filed a complaint against Dalhousie University, board members, etc. with the Nova Scotia Human Rights Commission - She submitted that the Commission might have a conflict of interest - The Commission decided to refer the matter to the Ombudsman and the Ontario Human Rights Commission - The University advised of its concern respecting the Commission's lack of authority to delegate - The Commission vigorously opposed the University's suggestion, but finally conceded its lack of jurisdiction - On the University's application, the court determined that the Commission lacked jurisdiction - Other interested individuals had expended legal fees even though they had not been party to the proceedings - They sought costs against the Commission - The Nova Scotia Supreme Court held that they were entitled to costs where they had a vested interest - Moreover, some interested individuals had filed substantial briefs to protect their interests - See paragraphs 25 to 27.

Practice - Topic 7452

Costs - Solicitor and client costs - Entitlement to - Neglect or misconduct - [See Civil Rights - Topic 7108 ].

Cases Noticed:

Radulesco v. Canadian Human Rights Commission, [1984] 2 S.C.R. 407; 55 N.R. 384; 9 Admin. L.R. 261; 9 C.C.E.L. 6; 84 C.L.L.C. 17,029; 14 D.L.R.(4th) 78, dist. [para. 48].

Young v. Young et al. (1991), 75 D.L.R.(4th) 46 (B.C.C.A.), affd. [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 13].

Lienaux et al. v. Toronto-Dominion Bank (1997), 159 N.S.R.(2d) 305; 468 A.P.R. 305 (C.A.), refd to. [para. 13].

Canadian Human Rights Commission v. Canada 3000 Airlines Ltd. et al., [1999] F.T.R. Uned. 432 (T.D.), refd to. [para. 15].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 190 D.L.R.(4th) 513 (S.C.C.), refd to. [para. 16].

Krupp MaK Maschinenbau GmbH et al. v. Black (1996), 151 N.S.R.(2d) 79; 440 A.P.R. 79 (C.A.), refd to. [para. 17].

Granview Farms Ltd. v. CBCL Ltd. (1997), 170 N.S.R.(2d) 166; 515 A.P.R. 166 (S.C.), revd. (1998), 170 N.S.R.(2d) 180; 515 A.P.R. 180 (C.A.), refd to. [para. 17].

Johnston v. Law Society of P.E.I., [1987] P.E.I.J. No. 89, refd to. [para. 25].

Counsel:

Eric B. Durnford, Q.C./Bernadine MacAulay, on behalf of the applicants;

Reinhold M. Endres, Q.C., on behalf of the respondent, Attorney General of Nova Scotia;

Davies Bagambiire, on behalf of the respondent, Carol Aylward;

Michael Wood, Q.C., on behalf of the respondent, N.S. Human Rights Commission;

Peter W. Kidston, on behalf of the respondent Ombudsman;

John C. MacPherson, Q.C., on behalf of the interested parties Vaughan Black, H. Archibald Kaiser and Dianne Pothier;

B. Lynn Reierson, on behalf of interested parties, Wayne MacKay and Richard Devlin;

Raymond S. Riddell, Q.C., on behalf of the interested party, Richard Evans.

This matter was heard at Halifax, Nova Scotia, on March 1, 2001, by Scanlan, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 2, 2001.