Court File and Parties

COURT FILE NO.: 16-68323 DATE: 20160804 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gina Disabatino, Applicant AND National Gallery of Canada and Frederic Bouin, Respondents

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: David Cutler, for the Applicant Todd Burke, for the Respondents

HEARD: In Writing

Costs ENDORSEMENT

[1] On July 15th, 2016, I dismissed the Applicant’s request for oral examination of one of the Respondent’s representatives pursuant to a request for the enforcement of a Letter of Request for Judicial Assistance issued by a court in the State of Florida.

[2] The Letter of Request relates to ongoing Florida matrimonial litigation between the Applicant and Frederic Bouin where the ownership of two multi-million dollar paintings is in issue. The application was originally heard on June 21, 2016 by Justice McLean who ordered the Respondent to produce all of the relevant documents in its possession. The Respondent never opposed that aspect of the Letter of Request, but required an undertaking that the documents disclosed would not be used for any other purpose except for the matrimonial litigation in Florida. Given the nature of the documents, the Respondent required a court order before it could release the information.

[3] The Respondent, however, successfully opposed the request for oral discovery of one of its representatives. It now seeks its full indemnity costs in the amount of $13,926.31. It cites established case-law that has determined that a stranger to foreign litigation should not be required to suffer the cost consequences of a legitimate opposition to a Letter of Request. In those cases, costs were awarded on a full indemnity basis.

[4] The Applicant submits that the Court always retains its jurisdiction in awarding costs when deciding whether to enforce a foreign Letter of Request. The Applicant argues that success was divided having regard to its success in requiring the Respondent to produce its file documentation and that it is only entitled to its reasonable costs in relation to the request for the oral examination of one of its representatives.

[5] The Applicant adds that the Respondent’s claim for costs is excessive and submits that an order in the amount of $6,125.92 is appropriate. The Applicant adds that she had the carriage of the matter and that she organized and submitted the bulk of the evidence. Her own Bill of Costs at an “Actual” rate is $12,636.79.

Conclusion

[6] The Respondent took no position with respect to the request for the production of the documents in its possession. In the absence of the consent of Mr. Bouin, it reasonably required a court order before releasing personal information and an undertaking that the information would solely be used for the purposes of the Florida matrimonial litigation.

[7] The Applicant requested both production of the documents and oral examination in the proceeding before Justice McLean who ordered production first before considering the issue of the oral examination. Two attendances by the Respondent were required. While the Applicant cites the extensive documentation produced by her, the Respondent had to review it. The Responding materials were of assistance in deciding the issue before me.

[8] This was not a case of divided success. The Respondent was wholly successful. The cases cited by the Applicant were both instances where the Applicant was successful and do not apply in this case. The Applicant’s own Bill of Costs mirrors that of the Respondent. I adopt the reasoning of Hackland, J in j2 Global Communications Inc. v. B.C. at para 3:

It is well established in the case law that the costs of witnesses examined pursuant to Letters Rogatory, as strangers to the litigation, should be paid to them on a full indemnity basis, see GST Telecommunications, Inc. v. Provenzano, [2000] B.C.J. No. 378 (B.C.S.C.) and Fox v. Bourget [1987] O.J. No. 2326. On the same basis costs of individuals who successfully oppose the issuance of Letters Rogatory should also be paid on a full indemnity scale…..

[9] I accordingly order the Applicant to pay the Respondent’s full indemnity costs in the amount of $13,926.31.

Mr. Justice Robert N. Beaudoin Date: August 4, 2016