Hernandez v. Purcell, 2013 NSSC 397

SUPREME COURT OF NOVA SCOTIA Citation: Hernandez v. Purcell, 2013 NSSC 397 Date: 20131210 Docket: Hfx. No. 353861 Registry: Halifax Between: Joanne Hernandez Plaintiff/Respondent -and- Danielle Lynn Purcell Defendant/Applicant and Hfx. No. 336133 Christina Phyllis Carroll Plaintiff/ Respondent -and- Parks and Armour Transport Defendant/Applicant Costs Decision Judge: The Honourable Justice Cindy A. Bourgeois Heard: By written submissions Written Decision: December 10, 2013 Counsel: Counsel for the Defendants/Applicants - Geoffrey Machum, Q.C.

Counsel for the Plantiff/Respondent (Purcell) - Ali Raja Counsel for the Plantiff/Respondent (Carroll) - Gordon Proudfoot, Q.C. Alan J. Stern, Q.C. for the Board of Examiners in Psychology

Bourgeois, J. INTRODUCTION [ 1 ] Earlier this year, the Court heard simultaneously two motions in which the Defendants sought release of certain file materials of a psychologist and neuropsychologist. The material in contention was raw testing data relating to standardized psychological tests. In both motions, the plaintiffs maintained a watching brief. They agreed the material was relevant, and that it should be released to the Defendants upon whatever conditions the Court felt appropriate.

The Board of Examiners in Psychology responded to the motions, seeking conditions on the release of the raw test data, given the professional and legal obligations held by the professionals to keep this information from being used and dispersed inappropriately. [ 2 ] The Court ordered release of the complete files of the professionals, including the raw test data to the Defendants, subject only to those conditions which apply given application of the implied undertaking rule. See Hernandez v. Purcell, 2013 NSSC 303 for full reasons. The parties have been unable to reach agreement with respect to costs.

POSITION OF THE DEFENDANTS [ 3 ] The Defendants submit that as successful applicants on the motions, they are entitled to costs pursuant to Tariff C. They seek costs of $500.00 against each of the professionals, or alternatively from the Board of Examiners. The Defendants further argue that the “ weight of the authorities ” clearly supported the position advanced on the motion, noting in particular the earlier decision of S.S. v. D.S. , 2008 NSSC 87 .

It is argued that because the disclosure of relevant raw data was not a novel issue, and that the position taken by the Board of Examiners was contrary to established legal precedent, costs should flow accordingly. POSITION OF OTHER PARTIES [ 4 ] The Court has not received submissions from any other interested party, other than the plaintiff Carroll who submits that in the circumstances, no costs should be awarded.

It is submitted that it was unclear prior to the decision in question, how such data should be treated, and clearly, the professionals involved were acting in accord with their own obligations, and not in an unreasonable fashion. DETERMINATION [ 5 ] Costs are in the discretion of the Court (Rule 77.02(1)) and normally follow the results, unless a judge orders otherwise (Rule 77.03(3)).

I further agree with the Defendants that Tariff C would normally guide the Court with respect to costs arising from such motions. [ 6 ] I cannot agree with the Defendants ’ assertions however, that the disclosure of raw testing data had previously been conclusively determined. As was clear from the decision, authorities from various provinces presented to the Court for consideration ranged widely in terms of what conditions, if any, courts had placed on the release of this type of material. [ 7 ] Further, I cannot agree with the Defendants ’ assertion that the earlier decision of this Court in S.S v.

D.S., supra was conclusive of the issue, and the Board of Examiners was somehow unreasonable in not recognizing its applicability. Firstly, that decision was rendered prior to the implementation of the new Civil Procedure Rules, which specifically reference the treatment of psychological data in Rule 14.03, and secondly, that decision does not endorse an unfettered release of materials to an opposing party, in fact, the release in that instance was subject to a number of conditions. In my view, the S.S. v.

D.S decision was more supportive of the position advanced by the Board of Examiners as opposed to the Defendants. [ 8 ] I agree with the position advanced by counsel for Ms. Carroll. The treatment of raw testing data in terms of disclosure obligations was not clear prior to these motions. Despite being referenced in Rule 14.03, there had been no judicial commentary in relation to this provision. The Defendants had not relied upon this provision in their submissions.

The professionals involved and the Board of Examiners had legitimate concerns with respect to the release of the materials, and were not acting arbitrarily or being unreasonable in their approaches given the professional and legal obligations attaching to their use of these testing instruments.

[ 9 ] In the circumstances, it is appropriate that all parties bear their own costs in relation to the motions. J.