Donaghy v. Scotia Capital Inc.

Donaghy v. Scotia Capital Inc. Court (s) Database Federal Court Decisions Date 2007-06-05 Neutral citation 2007 FC 598 File numbers T-2181-05 Decision Content 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” Deputy Judge

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