Healthvision Corporation v. Killorn

Healthvision Corporation v. Killorn Court Court of Appeal Date 1997-02-05 Citation 1997 NSCA 15 Docket CA 125259 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL Cite as: Healthvision Corporation v. Killorn, 1997 NSCA 15 Hallett, Freeman and Roscoe JJ.A. BETWEEN: HEALTHVISION CORPORATION, a body ) William L. Ryan, Q.C. and corporate formerly known as HCS ) Nancy Rubin HEALTHCARE SYSTEMS INC., a ) for the Appellant body corporate ) ) Appellant ) ) - and - ) ) J. COLLEEN KILLORN ) Raymond S. Riddell ) for the Respondent ) Respondent ) Appeal Heard: ) September 10, 1996 ) ) Supplementary ) Judgment Delivered: ) February 5, 1997 ) SUPPLEMENTARY JUDGMENT ON COSTS HALLETT, J.A.: The issue of costs was reserved following the rendering of a decision on this appeal. Having considered counsels' written submissions, and the offers to settle made by the respective parties prior to trial, and the offer to settle made by HealthVision subsequent to the jury verdict which offer was open for acceptance until HealthVision ordered a transcript for the purpose of the appeal we have concluded that the amount involved for the purpose of calculating a cost award was $40,000. Had the jury been properly instructed, an award in the range of $25,000 to $50,000 would have been within reasonable bounds for a jury award. Considering that HealthVision's pre-trial offer to settle for $40,000 inclusive of pre-judgment interest and costs was substantially greater than the amount that this Court ordered, although substantially less than the jury award at trial, we are of the opinion that Ms. Killorn ought to have her party and party costs plus disbursements only up to the date of the HealthVision offer and that HealthVision have its party and party costs plus disbursements to be taxed from that date to the finalization of the Order following trial. In short we have applied the provisions of Civil Procedure Rule 41A.09(2). We would note that Ms. Killorn had made an offer prior to trial for $65,000 and although the jury award was greater than this we are satisfied that had the jury been properly instructed the award would have been substantially less than this sum. We have concluded that the party and party costs should be calculated on the basis of 50% of the legal work done on Ms. Killorn's behalf was done prior to the receipt of the pre-trial offer to settle from HealthVision and that 50% of the trial legal work done on behalf of HealthVision was done after the offer to settle was filed. We are of the opinion that the mid Scale of the Tariff should be applied. This was a fairly straightforward wrongful dismissal case; it was only complex because counsel made it so. To say that we were shocked to read in the submissions made by counsel for HealthVision that 650 hours of lawyer's time had been expended on behalf of HealthVision in connection with the trial and appeal would be an understatement. If such an extraordinary amount of time was warranted on a case, such as this, it is obvious that the tariff of fees as prescribed under the Rules of Practice cannot come close to its objective of enabling a successful party to recover a substantial contribution to the legal costs incurred. Based on an amount involved of $40,000, the costs calculated under the Tariff at mid Scale are $4,125. Therefore, apart from the right of each party to their disbursements as taxed for the respective periods, the award of costs to them being equal are, therefore, set off one against the other. In accordance with standard rule of practice, HealthVision shall have its costs on appeal of 40% of $4,125, that is, $1,650 plus disbursements on the appeal to be taxed. Hallett, J.A. Concurred in: Freeman, J.A. Roscoe, J.A. C.A. No. 125259 NOVA SCOTIA COURT OF APPEAL BETWEEN: HEALTHVISION CORPORATION, a ) body corporate, formerly known as ) HCS HEALTHCARE SYSTEMS INC., ) a body corporate ) ) Appellant ) ) ) ) - and - ) SUPPLEMENTARY ) JUDGMENT ON J. COLLEEN KILLORN ) COSTS BY: ) HALLETT, J.A. Respondent ) ) ) ) ) ) )