Kilrich Industries Ltd. v. Halotier,

• Jurisdiction: Yukon
• Judge: Vertes, J.A.
• Neutral Citation: 2008 YKCA 4
• Citation: (2008), 261 B.C.A.C. 301 (YukCA),2008 YKCA 4,261 BCAC 301,(2008), 261 BCAC 301 (YukCA),261 B.C.A.C. 301
• Date: 10 January 2008
• Court: Court of Appeal (Yukon Territory)

Kilrich Ind. Ltd. v. Halotier (2008), 261 B.C.A.C. 301 (YukCA);

    440 W.A.C. 301

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. SE.021

Kilrich Industries Ltd. (respondent/plaintiff) v. Henri Halotier (appellant/defendant) and Minister of Justice (intervenor)

(YU 525; 2008 YKCA 4)

Indexed As: Kilrich Industries Ltd. v. Halotier

Yukon Court of Appeal

Vertes, J.A.

February 29, 2008.

Summary:

The Yukon Supreme Court allowed the plaintiff's action in debt following a summary trial. The defendant appealed, arguing that he did not have a fair opportunity to present a defence because the Rules of Court (YK) were not available to him in French, contrary to ss. 4 and 5 of the Languages Act (YK). He said that he was unable to speak French and to be understood by the presiding judge, and that when he finally came to understand the procedure at the summary trial, he was not permitted an adjournment to obtain legal advice, despite the fact that he had not filed the required materials in response to the plaintiff's application for summary judgment.

The Yukon Court of Appeal, in a decision reported 246 B.C.A.C. 159; 406 W.A.C. 159, allowed the appeal and ordered a new trial. The court declared the Rules of Court of no force and effect but suspended the operation of this declaration for 12 months to enable the Yukon Supreme Court and Government to comply with the bilingual publication requirements of ss. 4 and 13 of the Languages Act (YK). The court declined the defendant's request that his new trial not be held until the proposed new, bilingually published, Rules of Court came into force. Instead the court ordered the Yukon Government to pay for the services of a qualified interpreter who could assist the defendant either directly or through an English-speaking lawyer to understand the Rules of Court so as to permit him to defend himself. This remedy would acknowledge the continuing validity of the Rules of Court pending their publication in French, as well as ensuring that neither the defendant nor the plaintiff would suffer from further delay. The court ordered the Yukon Minister of Justice to pay the parties' special costs for the trial and the appeal. The defendant, who was self-represented at trial, claimed $29,171.40. The defendant's counsel, who represented him on the appeal, claimed $95,039.93. The plaintiff claimed $78,134.

The Yukon Court of Appeal, per Vertes, J.A., ordered the Minister of Justice to pay the following as special costs: (1) to the defendant personally, $20,848.90; (2) to the defendant's counsel on the appeal, $72,245.86; and (3) to the plaintiff, $49,589.87.

Practice - Topic 7133.3

Costs - Party and party costs - Disbursements - Legal fees incurred by self-represented litigant - [See Practice - Topic 7422 ].

Practice - Topic 7422

Costs - Solicitor and client costs - Measure of solicitor and client costs - Reasonable charges, reasonably performed - The plaintiff sued the unrepresented defendant in debt - The action was allowed after a summary trial - The defendant, now represented by counsel well versed in language law, appealed, arguing that he did not have a fair opportunity to present a defence because the Rules of Court (YK) were not available to him in French, contrary to ss. 4 and 5 of the Languages Act (YK) - The Yukon Court of Appeal allowed the appeal, ordered a new trial, and ordered the Yukon Minister of Justice to pay the parties' special costs for the trial and the appeal - The defendant, personally, claimed $29,171.40, based mostly on his hourly rate of $65 as a construction entrepreneur - His appeal counsel, who charged $350 per hour, claimed $95,039.93 - The plaintiff claimed $78,134 - The Yukon Court of Appeal, per Vertes, J.A., in assessing the amount of fees that were "proper or reasonably necessary to conduct the proceeding", awarded the defendant $20,848.90, the defendant's counsel $72,245.86 and the plaintiff, $49,589.87 - The proceeding was complex and difficult, where it raised numerous constitutional and statutory issues regarding language rights - While it might be reasonable to hire one of the best counsel, it was not reasonable to think that one would do so at $350 per hour without placing some limits on it - The case had much more importance than merely the amount involved on the original debt ($13,632.43) - The 220 hours spent on the file by the defendant's counsel could not be said to be objectively unreasonable - The appeal revealed systemic problems, which could not be resolved here by settlement negotiations - It was not incumbent on anyone to have to negotiate the exercise of their constitutional and statutory rights - The defendant personally was entitled to all of his out-of-pocket expenses - However, a self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to their case - Simply applying the defendant's contracting business hourly rate to all the hours he spent on the case was neither reasonable nor logical - The defendant's counsel was entitled to all his disbursements - Finally, the court was not convinced that the GST could not be included in a special costs award - See paragraphs 1 to 70.

Cases Noticed:

Campbell River Woodworkers & Builders' Supply (1966) Ltd. v. British Columbia (Minister of Transportation and Highways) (2004), 193 B.C.A.C. 29; 316 W.A.C. 29; 22 B.C.L.R.(4th) 210 (C.A.), refd to. [para. 3].

Bradshaw Construction Ltd. v. Bank of Nova Scotia (1991), 54 B.C.L.R.(2d) 309 (S.C.), affd. (1992), 16 B.C.A.C. 62; 28 W.A.C. 62; 73 B.C.L.R.(2d) 212 (C.A.), consd. [para. 3].

William v. British Columbia et al. (2006), 221 B.C.A.C. 48; 364 W.A.C. 48; 2006 BCCA 2, refd to. [para. 27].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Rohani v. Rohani et al., [2003] B.C.T.C. 1500; 2003 BCSC 1500 (S.C. Registrar), refd to. [para. 33].

Turner v. Minister of National Revenue, [2001] F.C.J. No. 250 (Assess. Off.), dist. [para. 57].

Skidmore et al. v. Blackmore (1995), 55 B.C.A.C. 191; 90 W.A.C. 191; 122 D.L.R.(4th) 330 (C.A.), refd to. [para. 58].

McBeth v. Dalhousie University (1986), 72 N.S.R.(2d) 224; 173 A.P.R. 224; 10 C.P.C.(2d) 69 (C.A.), refd to. [para. 58].

Fong et al. v. Chan et al. (1999), 128 O.A.C. 2; 46 O.R.(3d) 330; 181 D.L.R.(4th) 614 (C.A.), refd to. [para. 58].

Sherman v. Minister of National Revenue, [2003] 4 F.C. 865; 304 N.R. 227; 226 D.L.R.(4th) 46 (F.C.A.), refd to. [para. 58].

Dechant v. Law Society of Alberta (2001), 277 A.R. 333; 242 W.A.C. 333; 203 D.L.R.(4th) 157 (C.A.), refd to. [para. 58].

Statutes Noticed:

Rules of Court (Yuk.), Court of Appeal Rules, rule 61(1), rule 61(2) [para. 2].

Counsel:

R.J.F. Lepage, for the appellant;

S.L. Dumont, for the respondent;

Z. Brown, for the Minister of Justice, intervenor.

This assessment of costs was heard at Whitehorse, Yukon, on January 10, 2008, by Vertes, J.A., of the Yukon Court of Appeal, who delivered the following decision at Whitehorse, Yukon, on February 29, 2008.