Symington v. Halifax (Regional Municipality), 2012 NSSC 284

Editor ’ s Note : Corrigendum released on July 25, 2012. Original judgment has been corrected with text of corrigendum appended. SUPREME COURT OF NOVA SCOTIA Citation: Symington v. Halifax (Regional Municipality) , 2012 NSSC 284 Date: 20120725 Docket: Hfx No. 214598 Registry: Halifax Between: James Symington Plaintiff/Respondent v. Halifax Regional Municipality and Halifax Regional Police Service Defendants/Applicants LIBRARY HEADING Judge : The Honourable Justice M. Heather Robertson Written Submissions: April 27, 2012 and May 16, 2012 (COSTS) Decision: July 25, 2012 Subject: Costs

Summary: Defendants granted an order striking portions of the plaintiff ’ s second amended statement of claim and for

summary judgment. Issue: Appropriate costs Result: 3.5 day matter - using multiplier of two. Costs awarded to defendant $14,000.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Symington v. Halifax (Regional Municipality) , 2012 NSSC 284 Date: 20120725 Docket: Hfx No. 214598 Registry: Halifax Between: James Symington Plaintiff/Respondent v. Halifax Regional Municipality and Halifax Regional Police Service Defendants/Applicants Judge: The Honourable Justice M. Heather Robertson Written Submissions: April 27, 2012 and May 16, 2012 (COSTS) Decision: July 25, 2012 Counsel: Stephen J.

Moreau, for the plaintiff, respondent Daniel W. Ingersoll, Q.C., for the defendants, applicants Robertson, J. : [ 1 ] After the defendants ’ motion for an order striking portions of the plaintiff ’ s pleadings and for

summary judgment was granted by the court, the defendants seek costs, in the absence of an agreement as to costs, from the plaintiff. [ 2 ] Rule 77 of the Nova Scotia Civil Procedures Rules governs this request. In particular Rule 77.01(1)(

a) and Rule 77.03(3) provide that the successful party is entitled to costs.

[ 3 ] The award of costs is at the discretion of the court. Rule 77.02. The court has the discretion to increase or decrease the Tariff amounts - Rule 77.06(3) and Rule 77.07. [ 4 ] Multipliers with respect to the Tariff C(3) may be applied — Tariff C(4): [ 5 ] This of course depends on: 1. the complexity of the matter; 2. the importance of the matter to the parties; and 3. the amount of work involved in the preparation and conduct of the proceeding. [ 6 ] The standard tariff for this four-day matter would be $8,000.

The defendants seek a multiplier of two i.e. $16,000. [ 7 ] The plaintiff complains that as a tactical choice, the defendants conducted “ litigation by installments ” causing substantial and unnecessary cost to the plaintiff, as the motion heard by this court was a second set of preliminary

summary judgment motions brought five years apart. The plaintiff also complains that the defendants ’ “ material non disclosure compelled the Plaintiff to, quite appropriately, incur the significant cost of filling in this gap. ” [ 8 ] I disagree with the plaintiff that the defendants earlier motion for

summary judgment on the basis of the lack of jurisdiction was inappropriate.

The defendants largely won that earlier motion, which was upheld by the Nova Scotia Court of Appeal 2007 NSCA 90 , but for the survival of the claim of malicious prosecution. [ 9 ] In the motion before this court, the second amended statement of claim was in large part a restatement of the earlier pleadings and thus the subject of the defendants ’ motion to strike. [ 10 ] I cannot agree with the plaintiff ’ s position that they are the party entitled to costs in the circumstances or even that no costs ought to be payable. [ 11 ] The defendants were successful and as provided in the tariff are entitled to an award which I set at $14,000.

Justice M. Heather Robertson

SUPREME COURT OF NOVA SCOTIA Citation: Symington v. Halifax (Regional Municipality) , 2012 NSSC 284 Date: 20120725 Docket: Hfx No. 214598 Registry: Halifax Between: James Symington Plaintiff/Respondent v. Halifax Regional Municipality and Halifax Regional Police Service Defendants/Applicants Judge: The Honourable Justice M. Heather Robertson

Written Submissions: April 27, 2012 and May 16, 2012 (COSTS) Decision: July 25, 2012 Counsel: Stephen J. Moreau, for the plaintiff, respondent Daniel W. Ingersoll, Q.C., for the defendants, applicants ERRATUM: Paragraph [8]reads: . . . The plaintiff largely won that earlier motion, which was upheld by the Nova Scotia Court of Appeal . . . Paragraph [8]should read: . . . The defendants largely won that earlier motion, which was upheld by the Nova Scotia Court of Appeal . . .