COURT FILE NO.: 07-303ES

DATE: 20120918

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: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Kevin Kemp, for the Applicants

Marsha Gay, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[ 1 ] On July 13, 2012, I issued my endorsement in this matter dismissing the Applicants’ motion for disclosure of certain employment and personnel records of the deceased, David Michael MacDonald. The basis for the dismissal of the motion was that the Applicants should have applied for disclosure of the documentation under the provisions of the federal Privacy Act [1] and the Access to Information Act [2] rather than moving as they did under Rule 14 of the Rules of Civil Procedure [3] as well as Ontario estates legislation. Based upon this result, the Respondent now seeks costs of the motion of $6,256.76 on a partial indemnity basis.

[ 2 ] The Applicants do not deny that the Respondent is entitled to its costs of the motion. The only issue is the quantum. Mr. Kemp states that the solicitor for the Respondent, Ms. Gay, has less than 10 years of experience and accordingly can only claim an hourly rate of $225 and that, considering the complexity of the matter, the Respondent should be indemnified at a maximum rate of $150 to $175 per hour. He states that Ms. Gay failed to provide a Bill of Costs as required by Rule 57.01(5) of the Rules of Civil Procedure and in any event should only be allowed six hours of preparation time for the motion. Finally, he notes that he could have commenced an action and obtained the disclosure; his clients should not be penalized for their attempt to obtain the disclosure by way of a less intrusive motion.

[ 3 ] I disagree with the premise that this motion was not complex; although the issues were jurisdictional, these types of issues can be difficult to litigate and in this case, at least, resulted in the argument of this motion. Facta had to be prepared by both counsel and a lengthy motion date was necessary. The Applicants were forced to amend their motion because they had initially not adequately addressed the jurisdictional issues in this matter. Several appearances were necessary (and were previously addressed in the costs argument made at the motion). Notwithstanding the fact that no evidence was filed by the Respondent, I find that six hours of preparation time as suggested by Mr. Kemp to be wholly inadequate for this motion.

[ 4 ] I do not agree with the submission that the Applicants could have commenced a separate action in order to obtain the requested disclosure. The Applicants wished to obtain personnel files in order to determine whether the basis lay for an action or for the recovery of insurance funds paid out. As noted, there was a remedy under the applicable federal legislation, in which case, no motion would have been necessary. To state that an action could have been commenced begs the question as the real issue was whether a motion or application simpliciter could be brought under the Rules for disclosure of federally controlled documentation, which I answered in the negative.

[ 5 ] Ms. Gay has claimed an hourly rate of $137.34 per hour which is less than the amount suggested by Applicants’ counsel. She has filed a Bill of Costs which is found at Tab 1 of her costs submissions. That Bill of Costs claims five hours of appearance time, which is not objected to by Mr. Kemp. As noted above, he takes exception to the preparation time of 38.75 hours, which includes drafting of the Respondent’s factum. I agree that this appears to be excessive, and I allow 20 hours of preparation time, which would allow for costs under that heading of $2,746.80. Adding Ms. Gay’s time for the attendance at court, the solicitor’s time chargeable would be $3,433.50; the claimed disbursements are $248.13, which I find to be proper. Accordingly, the Respondent shall have its costs of this motion in the amount of $3,681.63.

[ 6 ] As this is an order made on motion, under Rule 37.03(1) costs are payable by the Applicants to the Respondent within 30 days of the date of this endorsement.

McDERMOT J.

Date: September 18, 2012

[1] R.S.C. 1985, c. P-21

[2] R.S.C. 1985, c. A-1

[3] R.R.O. 1990, Reg. 194