Executive Summary: Key Legal and Evidentiary Issues

• Costs were assessed following the Plaintiff's successful motion for partial summary judgment heard on November 27, 2025.
   
• Whether to depart from Tariff C in favour of a lump sum costs award under Civil Procedure Rule 77.08 was a central issue.
   
• Litigation misconduct was alleged by the Plaintiff, including delay, disregard of court orders, and filing of irrelevant affidavit evidence.
   
• Defendants disputed that any misconduct occurred and argued the requested $20,000 lump sum was excessive and punitive.
   
• An inconsistency arose in the solicitor's affidavit regarding the correct total of legal fees and disbursements.
   
• Application of the Armoyan v. Armoyan and Arbuckle v. Tanner framework guided the calculation of the lump sum award.
   

Facts of the case

This decision addresses costs arising from a motion for partial summary judgment brought by the Plaintiff, Younis Ashraf Genidi, against the Defendants, North 45 Orchards Limited and Dr. Hossam Elokda. The motion was heard on November 27, 2025, in Halifax, and the Plaintiff succeeded on the merits, as set out in the court's earlier decision, Genidi v. North 45 Orchards Limited, 2026 NSSC 116. Final submissions on costs were made on May 25, 2026. The motion had been filed in December 2024, and the proceeding was marked by delays, including an adjournment granted in November 2025 to allow the Defendants additional time to prepare their evidence, and an earlier adjournment in May 2025 attributed partly to a court scheduling conflict and partly to an adjournment request made by the Defendants. The Defendants disregarded certain court directives concerning filing timelines. At the hearing, the court had already ordered $500 in costs related to two late-filed affidavits, pursuant to Civil Procedure Rule 23.12(3).

Policy and legislative provisions at issue

The court considered Civil Procedure Rule 77.08, which allows a court to order lump sum costs instead of Tariff costs, and Tariff C, which sets the presumptive range of costs for a hearing lasting more than one half day but less than one full day at between $1,000 and $2,000. The court also applied Civil Procedure Rule 23.12(3), under which a judge who permits a late-filed affidavit may order the filing party to indemnify other parties for resulting expenses, including those from any adjournment. Guidance on lump sum costs was drawn from Armoyan v. Armoyan, 2013 NSCA 136, and the Court of Appeal's summary of that framework in Arbuckle v. Tanner, 2025 NSCA 54, which describe Tariffs as the norm from which departure requires justification, and lump sum party and party costs as intended to provide a "substantial contribution"—generally more than 50% but less than 100%—toward a party's reasonable fees and expenses, with 66% available as a default absent reasons to vary it.

Reasoning and analysis

The Plaintiff sought a lump sum costs award of $20,000, framed as 66% of legal fees and disbursements. The solicitor's affidavit stated legal fees of $26,636.50 plus disbursements of $342.80 for a total of $31,016.30 [affidavit-stated total: $31,016.30; court-corrected total: $26,979.30]. The Plaintiff argued that litigation misconduct—including delay, disregard of court orders, and the filing of irrelevant affidavit evidence—justified departure from the Tariffs. The Defendants disputed any finding of misconduct and argued that the $500 costs award already made at the hearing had addressed the issue of delay. The court found that Tariff C's range of $1,000 to $2,000 was unsatisfactory given that the matter did not proceed normally, citing the delays and adjournments outlined in the summary judgment decision, while acknowledging that not all delays were attributable solely to the Defendants. The court distinguished the earlier $500 costs award, noting it related specifically to the two late-filed affidavits rather than to the broader pattern of delay or non-compliance with court directives.

Ruling and overall outcome

Applying the Armoyan and Arbuckle framework, the court determined that a lump sum costs award, rather than a Tariff-based award, was appropriate given the atypical procedural history of the matter. The court concluded that a lump sum of $15,000 would achieve justice between the parties in light of the circumstances, including the length of the motion, which took the better part of a full day. Total costs of $15,000 were awarded in favour of the successful party, the Plaintiff, Younis Ashraf Genidi, and against the Defendant, North 45 Orchards Limited, only; no costs were ordered against Dr. Hossam Elokda personally.