COURT FILE AND PARTIES
COURT FILE NO.: 07-303ES
DATE: 20120713
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Patricia MacDonald and Teresa Jazwinski in their capacity as Estate Trustees of the Estate of James David Michael MacDonald, Applicants
AND:
Department of National Defence, Respondent
BEFORE: McDermot J.
COUNSEL: Kevin E. Kemp for the Applicants
Marsha Gay for the Respondent
HEARD: April 20, 2012
ENDORSEMENT
Introduction
[ 1 ] The deceased in this matter, James MacDonald, died on March 24, 2007. He died after a lengthy illness, apparently related to alcoholism and a condition known as Korsakoff’s Syndrome. The Applicants are his sisters and were appointed executors of his estate on July 31, 2007.
[ 2 ] At the time of his death, Mr. MacDonald was an employee of the Respondent, the Department of National Defence (“DND”). After his death, the Applicants discovered that Mr. MacDonald had appointed another person as beneficiary of his pension death benefits. Presumably in an attempt to determine his competency to designate the beneficiary of his death benefits, the Applicants requested Mr. MacDonald’s personnel file from DND. The first request was made on October 17, 2007. What followed was more than four years of argument between the Applicants and DND regarding the release of the complete personnel file which culminated in this motion.
[ 3 ] The Applicant initially commenced this motion under Rule 14.05(3)(b) of the Rules of Civil Procedure ; [1] that was clearly inapplicable as that Rule gives a court jurisdiction to direct an estate trustee or administrator to do or not do an act connected with the estate and that is not being requested in this motion. When the jurisdiction to bring the motion under that rule was questioned in the factum of DND, the motion was amended to include as jurisdiction for this motion Rules 14.05(3)(a), (d), (h) and 75.15(1)(i) as well as the Trustee Act [2] and the Estates Act . [3] As can be seen, jurisdiction for the Applicants to bring this motion is the primary issue; although the Respondent filed an extensive factum, much of this focussed on what should have been produced by the Departmental representatives. If, however, the Applicants did not have jurisdiction to bring this motion for file production, then it must be dismissed whatever should have been produced.
[ 4 ] The motion in this matter was originally returnable on October 18, 2011. It was adjourned several times, ending up before this court on a regular motions day on December 13, 2011. Several days prior to that date, on December 6, 2010, the Respondent delivered a lengthy factum, which raised procedural issues on the motion. A new Notice of Motion was filed by the Applicants on April 13, 2012 addressing in part the procedural issues raised. The Applicants requested an adjournment of the motion prior to December 13, but the Respondent refused. The parties attended and argued the adjournment. The adjournment was granted, but the parties agreed to make costs submissions before me regarding the contested adjournment on December 13, 2011.
[ 5 ] For the reasons outlined below, I find that the Applicants should have followed the file disclosure process set out in the Privacy Act [4] and as such did not have jurisdiction to bring this motion. The motion for production of the file is dismissed.
[ 6 ] Neither party shall have costs of the attendance on December 13, 2011.
Background Facts
[ 7 ] As noted above, the deceased in this matter, James MacDonald, was a long term employee of DND. He was an alcoholic and suffered from a psychological condition known as Korsakoff’s syndrome. In the Applicants’ factum, this is described as an alcohol related dementia.
[ 8 ] Mr. MacDonald died on March 27, 2007. The Applicants, his sisters, were named as beneficiaries of his estate in this court on July 31, 2007. Although this is not in the evidence that was provided to me, an issue apparently arose concerning the deceased’s designation of his death benefits under his pension plan in favour of an unnamed third party.
[ 9 ] Because Mr. MacDonald died from a dementia related illness, the Applicants wished to see his personnel file, including his performance reviews and ability to function on the job. This was relevant, in their view, to the issue of the deceased’s capacity to make the designation in question. The death benefits have been paid out notwithstanding the expressed concerns made on the record about Mr. MacDonald’s capacity, and the Applicants are considering whether to bring an action against DND as a result. They wish to investigate the capacity issues and determine whether an action may be brought by the estate.
[ 10 ] There are a number of relevant pieces of correspondence between the parties. The first was dated October 26, 2007, when the Applicants jointly wrote to Lisa Menini who was a compensation advisor for DND. They requested “all employment and benefits records pertains ( sic. ) to estate matters.”
[ 11 ] Ms. Menini wrote to the Applicants by letter dated the same date. She quoted to the Applicants the “SUPERANNUATION ADMINISTRATION MANUAL SPECIAL BULLETIN: 2005-002” which stated:
In accordance with the Privacy Act , estates are not permitted total access to information regarding the survivor benefit and the [survivor death benefit] following an employee’s death. Estates are only entitled to the information specifically required for the administration of the estate. In other words, unless the estate is the beneficiary of the SDB, it has no right to know the identity of the beneficiary or the amount of the benefit. Under those circumstances, the estate is entitled only to general information on how the plan operates.
[ 12 ] Ms. Menini refused the requested disclosure as “this information is contained within your brother’s personnel files”. The correspondence suggests that the Applicants apply under the Access to Information Act [5] and enclosed an Access to Information Request Form.
[ 13 ] On April 25, 2008, the Applicants forwarded the completed Access to Information Request form and the required fee to the Access to Information and Privacy Coordinator, Denise Brennan. They requested “all employment and benefits records” respecting Mr. MacDonald.
[ 14 ] On July 11, 2008, Ms. Julie Jansen on behalf of DND responded to the request. She states in her correspondence that the disclosure requested constituted personal information which could only be provided if it met either the criteria under s. 8(2) of the Privacy Act or s. 10(b) of the regulations under that Act. The letter states that, “[a]s none of the criteria have been met, the information that you have requested is exempt in accordance with section 26 of the Privacy Act .” The letter suggests that the information could be released through a subpoena; alternatively, it confirms the remedy of making a complaint to the Office of the Privacy Commissioner.
[ 15 ] That complaint was not made. No subpoena was issued; indeed no subpoena could be issued because there was no action or application outstanding and the Applicants wished this information for the purposes of determining whether an action could be brought. Instead, on October 30, 2008, Mr. Kemp wrote to Ms. Jansen on behalf of the Applicants suggesting that the file could be released under s. 10 of the Privacy Regulations [6] as the information was required “on behalf of the deceased person by a person authorized by or pursuant to the law of Canada or a province to administer the estate of that person, but only for the purposes of such administration”. He suggested that the documentation was “to enable them to administer the Estate” and as such withholding the information was “contrary to Statute.”
[ 16 ] Ms. Jansen wrote back on December 2, 2008, stating that the matter was under review. Ten days later, she wrote to Mr. Kemp stating that they could not release the “complete file” but requested that Mr. Kemp “identify exactly what personal information you require and the reason for which this information will be used to carry out the responsibilities and administering of the estate.” Again, the letter recites that if Mr. Kemp is dissatisfied with the response, he had the right to complain to the Privacy Commissioner.
[ 17 ] Mr. Kemp wrote back on February 12, 2009; he stated that the estate trustees owed no explanation as to the reason why they needed the file. He threatened an application if the file was not produced. Ms. Jansen responded on February 20, stating that the “right of access in these circumstances is limited to the administration of the estate” and again requesting particulars of the information being requested and the relevance of that information.
[ 18 ] A Notice of Application was apparently issued in March of 2010; I was not provided with a copy of that Notice of Application at argument, but I have since reviewed it. It was served and this resulted in the disclosure of a portion of the file on June 18, 2010. Unfortunately, that file disclosure did not include performance reviews or other information thought by the Applicants to be necessary to determine Mr. MacDonald’s competency issues. Portions were redacted. Accordingly, this motion was issued on September 9, 2011; it requests that DND “provide a complete copy of their file related to the deceased” and costs. It is to be noted that the Notice of Application requested the same relief as this motion, which was issued out of the estate file rather than the Application file. The only issue raised in both the motion and the application was the release of the file of Mr. MacDonald by DND.
Discussion
[ 19 ] As noted, prior to determining the issue of the release of the file, I must determine whether the Applicants had jurisdiction to bring this motion or whether they should have followed a different procedure in doing so; if this motion was brought without jurisdiction, the motion must be dismissed. Moreover, I am to determine the costs of the attendance on December 13, 2011.
(a) Do the Applicants have jurisdiction to bring this motion for the production of the employment and benefits file of Mr. MacDonald?
[ 20 ] As far as I can determine this is a motion brought in the administration of this estate for disclosure of the documents. No other relief is sought in the motion or the application noted above. An estate proceeding is not an adversarial proceeding; it involves proving of the will and distribution of the estate to the various beneficiaries. There is presently no lis or ongoing litigation between the parties other than this request for the file.
[ 21 ] The Applicants have relied upon Rule 14 of the Rules of Civil Procedure as jurisdiction to bring the within motion for disclosure. The Respondent objects to this, however. The Respondent does not deny that the Ontario Superior Court of Justice may have jurisdiction to order third party disclosure in the context of an independent action, proceeding or investigation. Ms. Gay states, however, that if the only relief being sought is disclosure, then the Applicants must comply with the federal Privacy Act and Access to Information Act . This involves a request for personal information under the Privacy Act , which ultimately involves an application to Federal Court.
[ 22 ] The federal Access to Information Act provides the basis for the release of information to individuals in the control of an individual ministry or government department. The basic rule under s. 4(1) of the Access to Information Act is that everyone has the right to information in the custody of an official of the federal government: see s. 4(1) of the Act .
[ 23 ] An exception to this rule is the production of personal information, which is prohibited under the Privacy Act . Section 8(1) of that statute states:
- (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
[ 24 ] No argument was made that the information contained in the employment file of Mr. MacDonald is not “personal information” as defined in s. 3 of the Act .
[ 25 ] Section 12(3) of the Privacy Act allows for regulations making exceptions to this rule; under s. 10 (b) of the Privacy Regulations information necessary for the administration of an estate may be released by the applicable government department:
- The rights or actions provided for under the Act and these Regulations may be exercised or performed
b) on behalf of a deceased person by a person authorized by or pursuant to the law of Canada or a province to administer the estate of that person, but only for the purpose of such administration;
[ 26 ] It is the position of the Respondent that they have provided this information, and any further information, such as performance reviews and the contents of the personnel file, are not necessary or relevant to the administration of the estate. They state that as no action has been brought as was contemplated by Mr. Kemp, and as no subpoena has been issued, the Applicants are limited to their remedies under the Privacy Act , which involves a complaint to the Privacy Commissioner, and upon completion of an investigation by that Commissioner, a review by the Federal Court. The process respecting the complaint to the Privacy Commissioner is set out in ss. 26, 29, 33 and 34 of the Act; essentially, an individual to whom personal information is refused may complain to the Privacy Commissioner who is then obligated to investigate the complaint: see ss. 26 and 29 of the Act . Upon completion of the investigation, the Commissioner is to produce a report and findings, as well as recommendations arising from the investigation.
[ 27 ] Under s. 35 of the Privacy Act , the recommendations of the Privacy Commissioner are not necessarily binding. Even if disclosure is recommended by the Commissioner, the applicable department may still elect not to provide the information in question. In any case, whether the recommendation is favorable or not, or if the department refuses access notwithstanding the recommendations of the Privacy Commissioner, a review of the investigation may then take place. Sections 41 and 48 of the Act read as follows:
Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of a provision of this Act not referred to in section 49, the Court shall, if it determines that the head of the institution is not authorized under this Act to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
[ 28 ] Ms. Gay states that, as the Applicants’ only request is the disclosure of personal information by DND, the Applicants should have followed the Privacy Act process in obtaining their information rather than bringing this motion. She says that to bring a motion based upon Rule 14 is effectively a collateral attack on the discretion of both the federal department providing the disclosure, as well as on the process whereby the documents are extensively reviewed in an investigation by the Privacy Commissioner. She requests a dismissal of the motion.
[ 29 ] The solicitor for the Applicants notes that this is really an issue concerning the administration of an estate which is within provincial jurisdiction and within the jurisdiction of this court. He relies upon s. 8(2) of the Privacy Act which allows the information to be disclosed by way of a court order. That section states:
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
( c ) for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information;
[ 30 ] “Court” is defined in the Act as the Federal Court; however, the wording in that section has been held to refer to an order of a provincial superior court: see Law Society of Upper Canada v. Canada (Attorney General) , 2008 1666 (ON SC) , [2008] O.J. No. 210 at para. 20 .
[ 31 ] Section 8(2)(c) above does not, in itself, permit the commencement of a proceeding; it merely says that where there is a court order for the production of the file, DND must honour that court order. Jurisdiction to bring the motion must lie elsewhere. The solicitor for the Applicants states that this court does in fact have jurisdiction to entertain a motion for disclosure without it being in the context of a proceeding or investigation. He relies upon the Rules and statutes noted above and below as well as the inherent jurisdiction of the court.
[ 32 ] To commence a proceeding in this court, you must have the right to do so either through a common law cause of action or alternatively through statute. As noted, Mr. Kemp’s motion relies upon Rule 14.05(3)(a), (d) and (h) and Rule 75.15(1)(i) of the Rules of Civil Procedure to give this court jurisdiction to act. The relevant provisions of Rule 14.05 read as follows:
(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(a) the opinion, advice or direction of the court on a question affecting the rights of a person in respect of the administration of the estate of a deceased person or the execution of a trust;
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(h) in respect of any matter where it is unlikely that there will be any material facts in dispute.
[ 33 ] Rule 74.15(1)(i) reads as follows:
74.15 (1) In addition to a motion under section 9 of the Estates Act , any person who appears to have a financial interest in an estate may move
(i) for an order providing for any other matter that the court directs.
[ 34 ] Mr. Kemp also relies upon s. 9 of the Estates Act , which allows a motion for an order for production of “[a]ny paper or writing being or purporting to be testamentary”.
[ 35 ] Finally, he relies upon s. 60 of the Trustee Act , which appears to be similar to Rule 14.05(3)(a) insofar as it allows an application “for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property”.
[ 36 ] This is a motion for production of the entire personnel file of Mr. MacDonald by DND. It is not brought in the context of any sort of action, other than for the purpose of the administration of the estate of Mr. MacDonald. The material filed does not provide much, if any, evidence of how it will assist in the administration of the estate; basically, as I understand it, the issue is the competency of Mr. MacDonald to have designated an individual as the recipient of his death benefits at the time of the designation. That may be the purpose of obtaining the information, but this is not specifically outlined in the affidavits of Patricia MacDonald sworn March 25, 2010 or July 12, 2011. All that I know from the affidavits filed is that the reason for the request for information is to determine the “capacity” of Mr. MacDonald.
[ 37 ] This is a motion for production of personal information which is in the custody of the Respondent. Although there may be good reason for that information to be given up to the Applicants, the remedy requested is an intrusive one. The department is being requested to hand over information which is personal to the deceased, and presumably the beneficiary of his death benefits. It is personal information as defined by the Privacy Act and the Respondent cannot disburse that information irresponsibly. Because this is an intrusive remedy, it appears to me that the moving party must show good reason for the information to be granted, as well as to demonstrate specific statutory authority giving them that remedy. It appears to me to be questionable that a “fishing expedition” such as the present case may very well not be good reason to provide that information; in any event the affidavit does not give any evidence as to why this information is necessary for the administration of the estate. Although Mr. Kemp stated that it was important because it involved determining whether the death benefits may prove to be an asset of the estate, this was not set out in Patricia MacDonald’s affidavit.
[ 38 ] Moreover, regarding the statutory authority for obtaining such an order, general “catch-all” provisions will not generally do. There has to be jurisdiction for the court to make the production order; this is supported by the wording in s. 8(2) (c) of the Privacy Act relied upon by the Respondent which states that the court making the production order must have “jurisdiction to compel the production of information”; otherwise the order must be “for the purpose of complying with rules of court relating to the production of information”. As stated in Re Toronto Police Services Board 2001 26341 , (Ont. I.P.C.) at p. 10 of the report, “Had the [ Municipal Freedom of Information and Protection of Privacy ] Act intended that a personal representative have full and unfettered access to information about the deceased, it would have indicated as much.” By analogy, the same would apply to the Privacy Act and Freedom of Information Act. As such, I must find specific jurisdiction to make the production order requested failing which the motion must be dismissed.
[ 39 ] As such, and considering Rule 14.05(3)(a), I cannot determine that this is an application for the “advice, opinion or direction of the court on a question affecting the rights of a person in respect of the administration of” an estate; the motion is for an order for production of the personnel file of Mr. MacDonald and nothing else. No opinion or direction is requested in the motion. Moreover, the rule contemplates the applicant requesting and receiving directions on questions affecting the estate; that is not the case in the present case where the only request is for production of the DND file. Rule 14.05(3)(a) does not apply; in turn neither does s. 60 of the Trustee Act .
[ 40 ] Similarly, this is not an issue of rights dependent upon the interpretation of a statute, regulation or order in counsel. No statute was cited to me which might give the Applicants the independent right to an order for production of the file in question and I have been provided with no statute to interpret which appears to give that right. A motion under Rule 14.05(3)(d) would have to include a request to interpret a document, statute or regulation; that is not requested in the present case.
[ 41 ] Both Rule 14.05(3)(h) and Rule 74.14(1)(i) speak of “any matter” or “any other matter” which is not otherwise covered by the rule or which does not have a serious question of fact; presumably Mr. Kemp is stating that these Rules give the court jurisdiction to do anything else at all not specifically otherwise covered by the rules. This is, however, not the case. This rule refers to “any matter” but that must refer to some cause of action, statutory or otherwise. It does not create a catch all remedy and it does not create an actionable right, such as the right to the production of the documents. As noted above, the remedy requested is intrusive in nature, and as such, I decline to find that these provisions are applicable in the present case.
[ 42 ] Accordingly, we are left with the issue of whether there is some sort of inherent jurisdiction for the court to make an order in this case. The Applicants rely upon the Law Society of Upper Canada v. Canada, supra as authority for this proposition. At para. 15, G.I. Pardu J. stated, citing D.P. v. Wagg , 2004 39048 (ON CA) , [2004] O.J. No. 2053 (C.A.) that “a superior court had inherent jurisdiction to control the production of documents.”
[ 43 ] That statement, however, speaks of jurisdiction to “control” the production of documents. It does not state that the court has an inherent jurisdiction to order production in a vacuum as requested in the present case. In fact, in that case, there was specific statutory jurisdiction conferred on the Law Society of Upper Canada to obtain an order for search and seizure of documents: the only issue before G.I. Pardu J. was whether an order could go against the Crown for the production from a federal agency under that provision. The request for information was made in the context of an investigation under the Law Society Act [7] and based upon a specific statutory authority for the search and seizure of documents. That is completely distinguishable from the present case where the Applicants seek by motion production of the documents without specific statutory jurisdiction.
[ 44 ] Similarly, in Chan v. Ching , [1999] O.J. No. 3139 (S.C.J.) , the production of immigration files was permitted, but as third party production in the context of a civil proceeding on notice to the Crown. This was not a motion for production independent of any other proceeding and again is distinguishable from the present case. I note that had the Applicants commenced proceedings against DND or another party, they would have had the right to obtain an order for documentary production against DND if they were a party, or even if they were a non-party: see Rule 30.10. However, to obtain documentary production against either a party requires an “action”: see Rule 30.02. Based upon rule 1.03, an action must be a proceeding commenced by statement of claim or notice of action and this is not the case where the matter is an estate administration: see Holgate v. Swimmer , 1999 15113 (ON SC) , [1999] O.J. No. 4551 (S.C.J.) at para. 10 .
[ 45 ] Finally, it is apparent to me that even were there some sort of inherent right of this court to make the production order, I would not order it in the face of the clear process for obtaining production of private or personal information under the Privacy Act . That statute has set out specific provisions for the obtaining of personal information such as that being sought in the present case. The Privacy Commissioner has specific expertise in investigating matters such as in the present case; to bypass that process would be, in the words of Mr. Kemp in his letter of October 30, 2008, “contrary to Statute.” Once the investigation is complete, there is a right of review to the Federal Court. Unlike the present case, there is specific jurisdiction to have that court review the documents sought and make production as necessary and just. As set out in Canada v. Davidson , 1989 9459 (FCA) , [1989] 2 F.C. 341 (C.A.), at p. 348, there are good policy reasons for upholding and supporting the statutory process under the Privacy Act :
It is no doubt true, as the appellant argued, that a Federal Court trial judge, on a review of a refusal of access by an institution head which, as here, is upheld by the Commissioner, has adequate powers of review over the decision of the institution head, though it must be said that a judge sitting in Court lacks the investigative staff and flexibility of the Commissioner. More important, if new grounds of exemption were allowed to be introduced before the judge after the completion of the Commissioner’s investigation into wholly other grounds, as is the issue in the case at bar, the complainant would be denied entirely the benefit of the Commissioner’s procedures. He would thus be cut down from two levels of protection to one. No case could better illustrate than the present one the advantages of a two-stage process, because it was only at the second stage that the fatal flaw in the initial ground was discovered.
[ 46 ] The importance of following the process set out in the Privacy Act has been affirmed on a number of occasions: see Cunha v. Canada (Minister of National Revenue – M.N.R.), [1999] F.C.J. No. 667 (T.D.) and Canada (Information Commissioner of Canada) v. Canada (Minister of National Defence) [1999] F.C.J. No. 522 (C.A.) . As stated by Desjardins J. at para. 27 of the latter case:
The investigation the Commissioner must conduct is the cornerstone of the access to information system. It represents an informal method of resolving disputes in which the Commissioner is vested not with the power to make decisions, but instead with the power to make recommendations to the institution involved. The importance of this investigation is reinforced by the fact that it constitutes a condition precedent to the exercise of the power of review, as provided in sections 41 and 42 of the Act.
[ 47 ] I do not believe it to be in the interests of justice to bypass this very specific process and the Applicants have given me no reason why it should be.
[ 48 ] Accordingly, even if I could find that there is an inherent jurisdiction to make the production order, there is a process in place which would adequately provide a remedy to the Applicants to obtain the information in question. That process adequately addresses the privacy issues raised by the request for information, and the Applicants’ counsel has provided no reason why this process is not an adequate remedy. He cannot pick and chose a means of obtaining production based upon some sort of inherent right of this court when there is a valid remedy elsewhere; I would only look at there being inherent jurisdiction where it was a last resort for the Applicants, which in light of the remedies under the Privacy Act , is clearly not the case.
[ 49 ] Accordingly, I find that there is no jurisdiction to bring the motion for production as presently constituted. As such, the motion for the production of the DND personnel file in respect of Mr. MacDonald is dismissed.
(b) Is either party entitled to costs for the appearance on December 13, 2011?
[ 50 ] As noted above, this matter was scheduled to be heard on December 13, 2011. Several days prior to the motion, the Respondent filed a factum which questioned the jurisdiction to bring this motion based upon the Rules relied upon in the Applicants’ Notice of Motion. Mr. Kemp wrote to Ms. Gay requesting an adjournment for the purpose of addressing these concerns. Ms. Gay refused and forced the attendance of the parties on that date.
[ 51 ] The matter was adjourned after argument. The matter was adjourned to a lengthy motions date. Costs of the attendance were reserved to me.
[ 52 ] Mr. Kemp states that he had asked for an adjournment of his own client’s motion which he was entitled to do as it was his motion. He says that the factum was served late and it was news to him that jurisdiction was being raised as this was the first material that had been filed on the motion. He states that the adjournment was granted, so his client was successful. He states that his client is accordingly entitled to the costs of that appearance.
[ 53 ] Ms. Gay states that the Applicants are presumed to know the law, and that the issue of jurisdiction should not have been a surprise. It was his motion and it was defective. The adjournment was to cure that defect.
[ 54 ] It is apparent to me that there should have been no issue regarding Ms. Gay consenting to an adjournment. It was the Applicants’ motion, and as such they had the right to adjourn their own proceeding; the request prejudiced no one other than themselves. The request for an adjournment was reasonable to cure a defect that Mr. Kemp was advised of late in the day.
[ 55 ] That being said, the motion was set down for a normal motions date, where motions were to be no more than one hour in length. As this was adjourned to a lengthy motion date, it had been improperly set down in the first place. Ms. Gay is not responsible for the fact that the motion had defects. Although the motion was granted, it may very well have been adjourned to a regular motion date had both parties not appeared, and this matter took in excess of an hour to argue.
[ 56 ] As such, each party will bear their own costs of the December 13, 2011 appearance.
Order
[ 57 ] Accordingly, the motion for disclosure of the DND file in respect of Mr. MacDonald is dismissed.
[ 58 ] There shall be no order as to costs for the December 13, 2011 attendance on this motion.
[ 59 ] The parties may provide written submissions for costs of this motion (excluding the December 13, 2011 attendance) with the Respondent and then the Applicant to provide submissions of no more than 3 pages in length not including any costs memoranda or offers to settle, on a 10 day turnaround.
McDERMOT J.
Date: July 13, 2012
[1] R.R.O. 1990, Reg. 194
[2] R.S.O. 1990,c. T.23
[3] R.S.O. 1990, c. E. 21
[4] R.S.C. 1985, c. P-21
[5] R.S.C. 1985, c. A-1
[6] SOR/83-508
[7] R.S.O. 1990, c. L.8