Date: 20070605
Docket: T-2181-05
Citation: 2007 FC 598
Ottawa, Ontario, June 5, 2007
PRESENT: The Honourable Mr. Justice Strayer
BETWEEN:
MARK
DONAGHY
Applicant
and
SCOTIA CAPITAL INC./SCOTIA
CAPITAUX INC.
and THE BANK OF NOVA SCOTIA
Respondent
and
The Office of the Privacy Commissioner of
Canada
Respondent
FURTHER REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
February 5, 2007 I heard an application brought by the Applicant under
subsection 14(1) of the Personal Information Protection and Electronic Documents
Act for a hearing in respect of matters which had been the subject of a
complaint by him to the Privacy Commissioner. On February 27, 2007 I issued Reasons
for Judgment indicating that the application would be dismissed. At the request
of counsel for the Respondent, I did not issue a judgment but indicated I would
deal with costs submissions by way of a motion in writing brought by the
Respondent, which I directed should be filed by March 20, 2007. The motion was
filed and served on that day. The Applicant did not serve a memorandum in reply
to that motion until April 5, 2007 and did not file his motion in reply until
April 20, 2007, providing no evidence as to the cause for delay. The
Respondent, the moving party on this motion, has objected to references in that
record to evidence whose submissibility had already been rejected by a
Prothonotary on January 23, 2007.
[2]
I
agree with the Respondent that such evidence is improper and I am disregarding
it. The Applicant also seems to be asking for an extension of time to file his
reply to the written motion in respect of costs and to be allowed to provide
submissions of more than ten pages, the limit which I had set in my directions
in the Reasons for Judgment. The Applicant has demonstrated no reason for me to
grant either request. He would have had ample time and space to make an
argument as to costs had he followed my directions. Instead, he devotes
considerable effort and space in his motion record to re-arguing the substance
of the application.
[3]
A
motion brought by the Respondent for the introduction of new evidence was
dismissed by a Prothonotary on January 23, 2007. She ordered costs in the
cause. I must therefore fix costs both on that motion and on this application.
In the application, I found in my reasons that the Applicant was well aware of
the information which he repeatedly insisted that the Respondent disclose. I
did find that for the sake of clarity, particularly in respect of possible
confusion which might be caused by one of the Respondents’ documents to third
parties, certain modifications should be made in that document. In its motion
record on the present motion for costs, the Respondent has provided evidence
that on May 5, 2006, some nine months before the hearing of the application,
the Respondent had offered to provide the Applicant with a letter confirming
that its records of attendance at work of the Applicant did not purport to
record whether or not the Applicant worked overtime. The Applicant rejected
that offer. Subsequently, in its memorandum of fact and law filed on July 31,
2006 the Respondent clearly admitted and confirmed the same facts. In its offer
of May 5, 2006 the Respondent also offered to settle without costs and counsel
offered to seek authority from his principal to waive $800.00 in costs already
awarded against the Applicant in respect of earlier motions.
[4]
The
Respondent now refers to various factors mentioned in Rule 400(3) of the Federal
Court Rules which judges may take into account and which are relevant here.
It argues that the result was in its favour, that none of the relief sought by
the Applicant was granted, that there had been a settlement offer rejected by
the Applicant, and that there had been no matter of public interest raised. For
his part, the Applicant argues that the Personal Information and Protection
and Electronic Documents Act is designed to protect ordinary Canadians who
should not have to pay costs to corporations or other large institutions. He
says that his application raised new questions on which there was no
authoritative ruling by the courts. He also says that he was partially
successful since the Court directed the Respondent to clarify its Staff Plans
and was somewhat critical of the wording of a letter written by the Respondent
to the Applicant on July 6, 2004.
[5]
While
I did direct some clarification in the Respondent’s Staff Plans and was mildly
critical of its letter of July 6, 2004, I also confirmed that I was satisfied
the Applicant was in no real uncertainty as to what the communications from the
Respondent meant. His application did not raise any important issue and he
would have had everything he could reasonably have wanted had he accepted the
settlement offered by the Respondent. While the courts should not discourage
individuals from bringing proceedings under the Act against large institutions,
to deserve some consideration in the matter of costs they must show a seriously
arguable case and good faith in the manner they conduct their litigation. This
application has been fraught with motions by the Respondent and a recurring
attempt to add new evidence.
[6]
The
Respondent has not asked for a special order under Rule 420 where an offer has
been made and refused. Nor do I think it appropriate to award lump sum costs in
the amounts requested by the Bank. The Respondent has asked for costs in the
motion to be set at fees of $13,200.00 plus disbursements of $1,937.13. In
respect of the application, it requests fees fixed at $15,165 plus $612.67 in
disbursements. The fees claimed are essentially based on hours spent by
counsel, claimed at a rate of $300.00 per hour which, according to counsel’s
affidavit, is well below the amount billed to his client.
[7]
I
believe it is appropriate in fixing lump sum fees to be guided by Tariff B
which operates on the principle of allowing a block of time within the range of
hours set out in the various columns. I have used as a rough guide the number
of units in column 3 which I believe accords with the degree of difficulty of
this case. Using this as a guide, I fix the fees for the motion decided on
January 22, 2007 at $2,500.00 and the disbursements on that motion which, by my
calculations, total $1,324.46 based on the items set out in counsel’s
affidavit. I fix the fees on the application itself at $6,000.00 with
disbursements as claimed at $612.69.
[8]
Total
costs will therefore be fixed at $10,437.13.
JUDGMENT
THIS COURT ORDERS THAT:
1.
Subject
to paragraph (2), the application be dismissed;
2.
The
Respondent be directed to correct its Staff Plan form for use in relation to
whatever staff may be found to be outside the scope of entitlement to overtime
pay; and
3.
Costs
be awarded to the Respondent in the amount of $10,437.13.
“Barry
L. Strayer”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2181-05
STYLE OF CAUSE: MARK
DONAGHY
Applicant
and
SCOTIA
CAPITAL INC. / SCOTIA CAPITEUX INC. and THE BANK OF NOVA SCOTIA
Respondents
and
THE
OFFICE OF THE PRIVACY COMMISSIONER OF CANADA
Respondent
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: February 5, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: STRAYER J.
DATED: June 5, 2007
APPEARANCES:
Mark Donaghy For
the Applicant
Paul S. Jarvis For
the Respondents, Bank of
Nova Scotia and Scotia Capital Inc.
Steven Welchner
Nathalie Daigle For
the Respondent, The Office
of the Privacy Commissioner of
Canada
SOLICITORS
OF RECORD:
Mark Donaghy
Mississauga, ON For
the Applicant
HICKS MORLEY
HAMILTON
STEWART STORIE
LLP
Barristers
& Solicitors
Toronto, ON For
the Respondents, Bank of
Nova Scotia and Scotia Capital Inc.
WELCHNER LAW
OFFICE
Ottawa, ON For
the Respondent, The Privacy
Commissioner of Canada
Office of the
Privacy Commissioner of Canada
Ottawa, ON For
the Respondent, The Privacy
Commissioner of Canada
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