Fynn v. College of Physicians and Surgeons of Nova Scotia, 2012 NSSC 308

SUPREME COURT OF NOVA SCOTIA Citation: Fynn v. College of Physicians and Surgeons of Nova Scotia, 2012 NSSC 308 Date: 20120816 Docket: Hfx No. 401520 Registry: Halifax Between: Dr. John Fynn Applicant v. The College of Physicians and Surgeons of Nova Scotia and the Cumberland Health Authority Respondents DECISION ON COSTS Judge: The Honourable Justice Glen G. McDougall Heard: July 10, 2012, in Halifax, Nova Scotia Written Submissions: August 9, 10 and 13, 2012 Counsel: Thomas P. Donovan, Q.C. and Joseph M. Herschorn, Ll.B., for the applicant Dr. John Fynn Marjorie A.

Hickey, Q.C., for the respondent College of Physicians and Surgeons of Nova Scotia Dennis James, Ll.B. and L. Martina Munden, Ll.B., for the respondent Cumberland Health Authority By the Court :

[ 1 ] A Motion for Interim Injunction came before me pursuant to a request for an emergency hearing. [ 2 ] The hearing of the Motion with notice to the two respondents was set for 11:00 o ’ clock on the morning of Tuesday, July 10, 2012. [ 3 ] The hearing proceeded as scheduled and was recessed at 12:30 p.m. for lunch.

It reconvened at 1:30 o ’ clock p.m. and concluded at approximately 3:00 o ’ clock p.m. [ 4 ] The Court reserved its decision but given the urgency of the issue that had to be decided an oral decision was delivered the following day commencing at 1:30 o ’ clock p.m. [ 5 ] A written decision was released subsequently, on July 18, 2012, leaving it to the parties to try to reach an agreement on costs. An agreement could not be reached so the Court has been asked to decide the issue. Issue: [ 6 ] What is the appropriate amount of costs that should be awarded to each of the respondents?

Costs: [ 7 ] The determination of costs is governed by Tariff C of Rule 77 of the Nova Scotia Civil Procedure Rules . Rule 77.02(2) makes it clear that the Rules do not limit the discretion of a judge to make any order respecting costs. [ 8 ] Tariff C establishes a range of $1,000 to $2,000 for a motion that takes more than one half day but less than a day. In total the motion including the time devoted to giving the oral decision amounted to approximately four hours spread over two days.

The need to bring the parties back to receive the decision was necessitated by the applicant ’ s request to have the matter dealt with on an emergency basis. Counsel for the respondents had to react to the situation with a minimum amount of notice. Preparation time was extremely compressed and involved a week-end. This is a factor that I believe is important in the exercise of my discretion to award costs. [ 9 ] The need to bring the parties back to court to receive the oral decision is another factor that I think should be considered.

The urgency of the matter was prompted by the applicant ’ s request to have the matter heard on an emergency basis.

To accommodate the applicant the Court reserved decision for the shortest amount of time necessary to adequately consider the evidence and counsels ’ submissions. [ 10 ] Given the duration of the hearing and the factors discussed above the applicant shall pay costs to each of the two respondents in the amount of $1,500. [ 11 ] The respondents have not presented a claim for disbursements so the sum of $1,500 for each respondent is all-inclusive. [ 12 ] The cost awarded to each party is payable within 30 days of the date of release of this decision.

McDougall, J.