SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-449995
MOTION HEARD: FEBRUARY 3, 2014

RE: Anne McGillivary, personally, Anne McGillivary as estate trustee of the estate of the late Charles McGillivary, and Stephen Andrew McGillivary

v.

The Toronto Police Services Board, John Doe 1, John Doe 2, John Doe 3 and Chief of Police William Blair

BEFORE: MASTER R.A. MUIR

COUNSEL:
Spencer F. Toole for the plaintiffs
Kevin McGivney for the defendants
Eric Wagner and Emtiaz Bala for the non-party Special Investigations Unit

ENDORSEMENT - COSTS

[1] This costs endorsement arises out of a motion brought by the plaintiffs for non-party production pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiffs sought production of certain files kept by the non-party Special Investigations Unit (the “SIU”) in connection with an incident on August 1, 2011 involving officers of the Toronto Police Service and Charles McGillivary.

[2] On February 6, 2014 I released my reasons for decision. I ordered the SIU to produce the requested files within 30 days. I also asked the parties to provide the court with written costs submissions.

[3] I have now received and considered the parties’ costs submissions.[^1] For the reasons that follow, it is my view that there should be no order with respect to the costs of this motion, despite the plaintiffs’ success.

[4] First, it was reasonable under the circumstances for the SIU to have opposed this motion. Important issues of public policy needed to be considered. In my view, the SIU performed an important public policy function by responding to this motion as it did. Importantly, the SIU provided most of the witnesses from its investigation with a promise of confidentiality. In my view, the SIU should not automatically abandon its promise every time a request for production is made.

[5] Second, it is important that all relevant information be in front of the court when it is asked to make a non-party production order of this nature. The evidence and the submissions of the SIU assisted the court in making the appropriate order in the circumstances of this case. As I indicated in my reasons for decision of February 6, 2014, there is no rule that the information requested by the plaintiffs must be produced in all circumstances. Non-party production is the exception and not the rule. The fact that this court may have made a production order against the SIU in another proceeding does not translate into a requirement that the same order be made in this action. Each request involves an exercise of discretion having regard to the facts of each particular case.

[6] Third, the SIU is a stranger to this litigation. It has no interest in the outcome of the plaintiffs’ claims.

[7] Finally, a significant portion of the work undertaken by the plaintiffs on this motion was necessary regardless of the position taken by the SIU. The plaintiffs would have been required to satisfy the court that the production order should be made even if the SIU chose not to oppose.

[8] For these reasons, it is my view that it is fair and reasonable that there be no order with respect to the costs of this motion.

Master R.A. Muir

DATE: March 4, 2014

[^1]: No costs are sought by or against the defendants.