COURT FILE NO. Div. Ct. 249/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, SWINTON, HENNESSY JJ.
B E T W E E N:
KATHLEEN FOTWE
John C. Ritchie, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
THE CITADEL GENERAL ASSURANCE COMPANY
Daniel I. Reisler, for the Defendant (Appellant)
Defendant (Appellant)
Heard at Toronto: January 27, 2005
SWINTON J.
SUPPLEMENTARY REASONS
THE SEALING ORDER
1The Master ordered that the motion record, responding motion record, supplementary affidavit of Mr. Atherton, the factums of both parties and her endorsement be sealed until the trial of this action and the time for exercising all rights of appeal had passed. Before the Divisional Court, the appeal books and the factums were sealed, pursuant to an order of MacFarland J.
2Pursuant to s.135(2) of the Courts of Justice Act, R.S.O. 1990, c.C.43, the court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies the departure from the general principle that court proceedings should be open to the public.
3In the Notice of Motion before the Master, the Defendant sought only an order that the supplementary affidavit of Brian Atherton be sealed in the Court file. Attached to that affidavit as an exhibit was a sealed envelope containing a copy of the privileged letter which had been faxed in error.
4Clearly, there would be prejudice to the Defendant if the privileged document were not sealed, and therefore, it was appropriate to order the sealing of the letter attached as an exhibit to the affidavit of Mr. Atherton (Tab 14A of the Appeal Book and Exhibit A to the affidavit before the Master) until the trial of this action and the expiry of any appeal period. However, there is no justification for sealing any other documents in the Court file, including the decision of the Master, as there is no demonstrable prejudice if those documents are available to the public. Therefore, the sealing order made by the Master is set aside, as is the sealing order made by MacFarland J., except with respect to Tab 14A of the Appeal Book and Exhibit A to the Supplementary Affidavit of Mr. Atherton, dated August 21, 2003.
COSTS
5While the Plaintiff/Responding Party sought costs on a substantial indemnity basis, the conduct of the Defendant/Appellant does not warrant costs on that scale.
6Her costs on a substantial indemnity basis for the motion for leave to appeal and the appeal were $50,241.32. The costs of the Appellant on a partial indemnity scale were $19,000.00.
7After considering the Bill of Costs and the principles set out in Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), costs to the Plaintiff/Responding Party of the motion for leave to appeal and the appeal are fixed at $25,000.00 on a partial indemnity basis, payable within 30 days.
SWINTON J.
O’DRISCOLL J.
HENNESSY J.
COURT FILE NO. Div. Ct. 249/04
Date: 20050302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, SWINTON, HENNESSY JJ.
B E T W E E N:
KATHLEEN FOTWE
Plaintiff (Respondent)
- and -
THE CITADEL GENERAL ASSURANCE COMPANY
Defendant (Appellant)
SUPPLEMENTARY REASONS
SWINTON J.
Released: March 2, 2005