Christopher S. Jackman First Applicant And: Dr. Chritopher S. Jackman Professional Medical Corporation Second Applicant And: Her Majesty the Queen in Right of Nefoundland v. Labrador, 2019 NLSC 88

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jackman v. Newfoundland and Labrador , 2019 NLS C 88 Date : April 23, 2019 Docket : 201801G2096 Between: Christopher S. Jackman First Applicant And: Dr. Chritopher S. Jackman Professional Medical Corporation Second Applicant And: Her Majesty the Queen in Right of Nefoundland and Labrador Respondent Before: Justice William H. Goodridge Place of Hearing: St. John’s, Newfoundland and Labrador Date of Written Submissions: March 27 and April 3, 2019 Appearances: Bernard M. Coffey, Q.C. Appearing on behalf of the Applicants

Rolf Pritchard, Q.C. Appearing on behalf of the Respondent Authorities Cited: STATUTES CONSIDERED: Medical Care and Hospital Insurance Act , S.N.L. 2016 c. M-5.01 ; Medical Care Insurance Insured Services Regulations (O.C. 96-132) RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT COSTS Goodridge, J. : [ 1 ] On March 28, 2018, the Applicants filed an Originating Application seeking the following declarations: 1. There is no legislative prohibition of removing a cataractous lens from a patient’s eye in a private medical clinic (i.e. outside a hospital); 2.

The removal by an ophthalmologist of a cataractous lens from a patient’s eye in a private medical clinic is not an insured service for purposes of the Medical Care and Hospital Insurance Act , S.N.L. 2016 c. M-5.01 and the Medical Care Insurance Insured Services Regulations (O.C. 96-132); and 3. The following services, when provided by an ophthalmologist in a private medical clinic, are not insured services: i. Performing Optical Coherence Biometry (IOL Master) and Auto-Refraction; ii. Performing Corneal Vector Analysis and Astigmatism Planning; iii.

Performing Optical Coherence Tomography (OCT) of Anterior Segment; iv. Performing Corneal Topography; v. Performing Femto Laser Assisted Surgery; vi. Providing and Implanting Aspheric Intraocular Lens; vii. Providing and Implanting Toric Intraocular Lens; viii. Providing and Implanting Multifocal Intraocular Lens; and ix. Providing Post-Surgical Refractive Lens Kit [ 2 ] The matter was heard May 25 and June 22, 2018, and a decision was filed March 6, 2019.

The cost award was reserved, at the request of the parties, to allow further submissions. [ 3 ] In written submissions, filed March 27, 2019, the Applicants argue, “The Respondent’s intemperate and irresponsible behaviour throughout this matter is ‘deserving of reproof and rebuke,’ and warrants the award of solicitor-client costs to the Applicants.” The Respondent’s reply submissions, filed April 3, 2019, argue, “There is no basis to deviate from party-and-party costs as the Applicants can point to no conduct of the Respondent that justifies departure from the general rule.” The Respondent notes that the result of the Application reflects one of mixed success, and suggests that an appropriate cost award is two-thirds of the Applicants’ party- and-party costs. [ 4 ] I agree with the Respondent.

There is no justification here for an award of solicitor-client costs and an appropriate cost award is two-thirds of the Applicants’ party-and-party costs. [ 5 ] The parties had differing views on the proper

interpretation of the Medical Care and Hospital Insurance Act , S.N.L. 2016 c. M-5.01 and the Medical Care Insurance Insured Services Regulations (O.C. 96-132). The application was brought to resolve the dispute, essentially asking the Court to interpret the relevant legislation. There were opposing views, as is typical in virtually every matter that proceeds to Court. There was no bad faith or scandalous behavior; there was nothing, in my view, to justify an award of solicitor-client costs. The declarations made in the decision flow from the Court’s

interpretation of the relevant legislation. On item 1,

the Court made a declaration that favoured the Applicants’ submissions. On item 2, the Court made a declaration that favoured the Respondent’s submissions. Item 3 was not argued because the Respondent conceded that item at the outset. [ 6 ] Overall, the Applicants enjoyed the most success on the Application. That is because items 1 and 3 had significant financial consequences to the Applicants, and the declaration made on those two items favoured the Applicants.

In the circumstances, the Applicants are awarded two-thirds of their party-and-party costs, based on column 3 of the Scale of Costs in Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . [ 7 ] There is no cost award to the Respondent. _____________________________ William H. Goodridge Justice