SUPREME COURT OF Nova Scotia
Citation: Green v. Nova Scotia (Community Services), 2022 NSSC 324
Date: 20221108
Docket: Hfx No. 508867
Registry: Halifax
Between:
Kelsey Daniel Forbes Green
Plaintiff
v.
Nova Scotia Department of Community Services, Kelly Regan, Sandy Graves, Executive Director, Service Delivery, Shauna Clark-Foran, Acting Executive Director, Services Tracy Embrett, Acting Executive Director, Child, Youth & Family Supports Kelly Besler, RSW, Director of CYFS David MacLennan (Former RSW) Megan Turetzek-Windsor, Social Worker Candidate Kimberley Hankin, RSW Denise Crowell, MSW, RSW Nicole Warren, RSW Kelsie Maloney, Social Worker Candidate Heather-Ann Ross, Social Worker Candidate Colleen Maloney-Greenfield, RSW Kathryn Giacomantonio, Social Work Candidate Nova Scotia Department of Justice Theresa Forgeron, Tanya McCarthy
Defendants
COSTS DECISION
Judge: The Honourable Justice Ann Smith
Heard: October 27, 2022, in Halifax, Nova Scotia
Written
Decision: November 8, 2022
Counsel: Kelsey Daniel Forbes Green, self-represented Plaintiff
Drew Hampden and Myles Thompson, for the Defendants
By the Court:
Introduction
[1] On October 27, 2022, this Court heard a motion to dismiss Mr. Green's claim against the Honourable Theresa Forgeron of the Supreme Court of Nova Scotia, Family Division. Mr. Green had filed a Notice of Action and Statement of Claim, with Justice Forgeron as a named Defendant on September 13, 2021.
[2] After considering the evidence and hearing the arguments of counsel for Justice Forgeron and Mr. Green, acting on his own behalf, the Court rendered an oral decision, granting summary judgement in favour of Justice Forgeron and thereby dismissing the claim against Justice Forgeron, in its entirety, with costs payable to Justice Forgeron.
[3] Counsel for Justice Forgeron presented the Court with a letter from counsel to Mr. Green dated February 8, 2022. This letter provides, inter alia, that "the claims against Justice Forgeron are without merit and unsustainable in law because judges of the Supreme Court of Nova Scotia are immune from civil liability in relation to the performance of their duties". The letter attaches a Notice of Discontinuance, in draft form, and states that Mr. Green may wish to obtain legal advice before signing it and is encouraged to do so. Counsel goes on to state that "if the Discontinuance was filed by February 22, 2022, costs would not be sought against you". Alternatively, counsel advises Mr. Green that if the Discontinuance was not filed by February 22, 2022, counsel would bring a motion for summary judgment on behalf of Justice Forgeron, dismissing the claims against her with costs.
[4] I find that this letter is relevant to the issue of the quantum of costs. Mr. Green was given an opportunity at the time he received this letter to have his claim discontinued, on a without costs basis. Instead, Mr. Green chose to continue with his action, requiring a motion to brought to have the claim summarily dismissed on the basis of judicial immunity.
[5] Counsel for Justice Forgeron seeks lump sum costs in the amount of $5,000.00. Mr. Green submitted that he would agree to pay costs in the lump sum amount of $2,500.00.
Analysis and Decision on Costs
[6] The starting point in determining the quantum of costs is the Tariff of Costs and Fees under Rule 77. Costs on a motion are governed by Tariff C unless the judge orders otherwise. The Court may make any order that it determines will do justice between the parties (Rule 77.02(1)).
[7] The hearing of the Defendants’ motion for summary judgment took place for approximately one-half hour on October 27, 2022. As such, Tariff C costs fall in the range of $250.00 to $500.00. The Court notes, however, that two other motions in this proceeding were also heard on October 27, 2022. Counsel for Justice Forgeron did not participate in those other motions but was present in court for them. The Court did not indicate in advance of hearing the three motions the order in which they would be heard.
[8] As noted above, this Court ordered summary judgment to the Defendant Justice Forgeron, dismissing Mr. Green's claim against her. Accordingly, paragraph 4(c) of Tariff C is triggered. Paragraph 4 (c) provides:
(4) When an order following an application in Chambers is determinative of the entire matter at issue in the proceeding, the Judge presiding in Chambers may multiply the maximum amounts in the range of costs set out in this Tariff C by 2, 3 or 4 times, depending on the following factors:
(a) the complexity of the matter,
(b) the importance of the matter to the parties,
(c) the amount of effort involved in preparing for and conducting the application.
(such applications might include, but are not limited to, successful applications for Summary Judgment, judicial review of an inferior tribunal, statutory appeals and applications for some of the prerogative writs such as certiorari or a permanent injunction).
[9] This Courts sets the Tariff C basic amount at $500.00. The matter was important to the individual Defendant, and Justice Forgeron was completely successful in having Mr. Green's claim against her dismissed. There was effort expended by counsel in preparing for the motion.
[10] Further, I find it highly relevant that Mr. Green was given the opportunity to have his claim against Justice Forgeron discontinued on the basis of judicial immunity in February 2022. That is the same basis upon which the Court found that his claim against Justice Forgeron must be dismissed. Had Mr. Green agreed to a dismissal of his claim at that time, he would have avoided a costs order. Further, Justice Forgeron would have avoided the costs of bringing the motion to have Mr. Green's claim struck.
[11] I exercise my discretion to apply a multiplier of 4 to the amount of $500.00 resulting in costs of $2,000.00. I add $1,500.00 to that amount as a result of Mr. Green's persistence in proceeding with his action against Justice Forgeron, despite being advised of the likely costs’ consequences of doing so.
[12] Counsel for Justice Forgeron prepared a draft form of order, which Mr. Green has consented to as to form.
[13] During the oral hearing of the summary judgement motion, I stated that normally I order that costs’ awards are payable within 30 calendar days of the date of the order. Mr. Green has since asked that he be given 90 or 120 calendar days to pay costs.
Conclusion
[14] Mr. Green shall pay costs in the lump sum amount of $3,500.00 to Justice Forgeron, through her legal counsel, within 45 calendar days of the date of the issued costs’ order in this matter.
Smith, J.