J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McMullin (Crouse) v. Crouse, 2004 NSSF 51 Date: 20040503 Docket: 1201-54828 Registry: Halifax Between: Catherine Anne McMullin (Crouse) v. Ross Letson Crouse Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: November 3, 2003 and January 21, 2004, in Halifax, Nova Scotia (Supplementary Decision on Costs) Counsel: William Leahey, for the Petitioner By the Court: [1] After releasing my decision in this matter on March 8, 2004 but before an order from that decision was issued, the Court received from Mr. Crouse letter dated March 25, 2004 in which he stated, among other things, that he was not served with the Applicant’s application and supporting material. The Court had previously received from the Applicant sworn Affidavit of Service indicating otherwise. wrote to Mr. Crouse on April 12, 2004. In that letter stated: would be prepared to meet with you and Mr. Leahey in Court and on the record to allow you the opportunity to express under oath any concerns you might wish to put forward regarding service. [2] provided Mr. Crouse with my Assistant’s name and phone number and told him that he had until the 23rd of April, 2004 to contact the Court. also advised him that if the Court did not hear from him by April 23, 2004 that would assume that he did not wish to appear and my Order would be issued. [3] On April 22, 2004 received from Mr. Crouse letter dated April 20, 2004 enclosing document entitled “Affidavit”. In that document Mr. Crouse again stated that he was not informed of when the hearing was to take place. I had my Assistant contact Mr. Crouse at his place of employment (the office phone number having been provided by Mr. Crouse in an attachment to his affidavit) and a telephone conference was arranged for the same day at 2:00 p.m.. Mr. Leahey’s office was also contacted. Mr. Leahey confirmed his availability for phone conference at that time. [4] Beginning at 2:00 p.m. numerous telephone calls were made to Mr. Crouse’s office from the Courtroom.  observed the Court Reporter placing the call to ensure that the numbers provided by Mr. Crouse were used and I personally placed two calls to Mr. Crouse’s office and on one of those occasions left a message on Mr. Crouse’s voice mail to return the call. The Court Reporter also left at least two messages on Mr. Crouse’s voice mail to return the call. The Court’s calls to Mr. Crouse’s office continued at approximately five minute intervals up to and including 2:50 p.m. without any success. At no time on that day or on any of the days up to and including April 30, 2004 did Mr. Crouse return the Court’s calls. [5] I have since received correspondence from Mr. Leahey arguing that his client should be entitled to additional costs (over and above that which was provided in my decision of March 8, 2004 because of the time which he took preparing for the phone conference. agree that his client is entitled to costs. [6] I remain satisfied that Mr. Crouse received adequate notice of the hearing. I am unconvinced by Mr. Crouse’s affidavit. In any event, because he did not make himself available for the telephone conference and was not available for cross examination, his affidavit is struck. The Applicant is entitled to additional costs in the sum of $250.00 for a total of $550.00, inclusive of disbursements.
After the court released its decision but before an order was issued, the court received a letter from the respondent in which it was stated that he had not been served with the applicant's application and supporting material. The applicant had previously provided the court with a sworn Affidavit of Service indicating otherwise. The respondent was provided with the judge's assistant's name and phone number and given a date by which he was to contact the assistant. The assistant was not contacted but the respondent sent a second letter to the court enclosing a document entitled 'Affidavit' which again stated that he had not been informed of when the hearing was to take place. A telephone conference was arranged but the court was unable to contact the respondent at the set time despite numerous calls and messages from the court. The applicant now sought additional costs due to the time counsel had taken to prepare for the telephone conference. Affidavit of the respondent struck; applicant entitled to additional costs in the amount of $250. The court was not convinced that the respondent had not received adequate notice of the hearing and because he did not make himself available for cross- examination, his affidavit was struck.