Brill v. Nova Scotia (Attorney General)

Brill v. Nova Scotia (Attorney General) Court Supreme Court Date 2009-03-20 Citation 2009 NSSC 91 Docket Hfx 286642 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Brill v. Nova Scotia (Attorney General), 2009 NSSC 91 Date: 20090320 Docket: Hfx.No. 286642 Registry: Halifax Between: Alan R. Brill Applicant v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in the Right of the Province of Nova Scotia Respondent __________________________________________________________________ DECISION ON COSTS __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: September 11, 2008, in Halifax, Nova Scotia Submissions: March 3, 2009 & March 16, 2009 Decision: March 20, 2009 Counsel: John Keith, for the applicant Mark Rieksts, for the respondent By the Court: [1] This case was interlocutory in nature and a decision was rendered in favour of the respondent on November 7, 2008. In that application Mr. Brill sought a determination on a question of law pursuant to Civil Procedure Rule 25.01(1972), an order that a certificate of title be issued in favour of the applicant and an order for summary judgment pursuant to Civil Procedure Rule 13(1972 Rules). The ruling on this application did not dispose of the action and a trial will be required. [2] The parties were invited to provide written submissions on costs and both have done so in detail. The successful respondent seeks $1,000.00 in costs payable in any event of the cause. The unsuccessful applicant suggests $850.00 in the cause. The parties agree that this application was brought under the 1972 Rules and, as such, the 1972 Rules apply in determining costs. [3] The parties agree that Civil Procedure Rule 63.05(1) applies. It states: “Unless the court otherwise orders, the costs of any interlocutory application, whether ex parte or otherwise are costs in the cause and shall be included in the general costs of the proceeding.” [4] The rationale for Rule 63.05(1) was described by Hart J.A. in Natural Beauty Products Ltd. (Receiver of) v. Body Reform Limited 1990 CarsWell NS 449 as follows: “The Applicant has also argued the Trial Judge should not have awarded costs to the Respondent in the Court below and with this ground appeal I am inclined to agree. Costs on interlocutory matters are usually ‘in the cause’ so that if after full trial it become apparent that a different view should have been taken of the interlocutory application the party applying should not be penalized with costs.” [5] Costs are always in the discretion of the court. [6] I have considered all submissions. I fix costs in the amount of $1,000.00. This award will be in the cause as defined in Civil Procedure Rule 77.03(4)(a). J.