Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on the extent of redactions applied by the Privy Council Office to the “Davey Report” under the Access to Information Act.

• Applicant challenged the withholding of information after obtaining a less-redacted version from another source.

• The Information Commissioner recommended full disclosure, which the Privy Council Office eventually provided following a settlement.

• The only unresolved issue before the court was the quantum of costs to be awarded to the applicant.

• Both parties agreed the applicant was entitled to costs, but disagreed on the appropriate amount and calculation method.

• The court considered the resource imbalance and the conduct of the parties in determining a fair costs award.

Facts and outcome of the case

Background and facts

The applicant, a senior fellow at an academic institution, submitted a request under the Access to Information Act to the Privy Council Office for access to a document known as the “Davey Report.” The Privy Council Office responded by releasing a version of the report with significant redactions, citing national security and related exemptions. The applicant, dissatisfied with the extent of the redactions, noted that similar documents had been released with fewer redactions in the past. Subsequently, the applicant obtained a less-redacted version of the Davey Report from another researcher, highlighting inconsistencies in the government’s approach to disclosure.

The applicant filed a complaint with the Office of the Information Commissioner, who ultimately recommended that the Privy Council Office release the Davey Report in full. Despite this recommendation, the Privy Council Office did not immediately comply, prompting the applicant to commence legal proceedings. Shortly before the applicant was to file the application record, the parties reached a settlement, and the Privy Council Office released the Davey Report in its entirety.

Proceedings on costs

Although the substantive dispute was resolved, the parties could not agree on the quantum of costs to be awarded to the applicant. The applicant sought a lump sum representing 50% of actual legal fees, citing the importance of the issues, the resource imbalance between the parties, and the need to encourage access to justice. The respondent argued for a lower amount based on standard tariff rates, contending that the case was straightforward and did not warrant an elevated costs award.

Court’s analysis and decision

The court reviewed the relevant rules and principles governing costs, including the discretion to award lump sum costs and the factors that may justify a departure from standard tariff rates. The court found that the applicant was entirely successful and that the Privy Council Office’s conduct necessitated the legal proceedings. The court also considered the significant resource imbalance and the public importance of ensuring proper disclosure under access to information laws.

After weighing these factors, the court determined that a lump sum award of 25% of the applicant’s actual legal fees was appropriate. The court also found the applicant’s claimed disbursements to be reasonable.

Outcome

The court ordered the respondent to pay the applicant a total of $4,405.59, inclusive of all fees, disbursements, and taxes. No other costs or damages were awarded. The decision underscores the court’s willingness to tailor costs awards to the circumstances of the case, particularly where access to justice and government accountability are at stake.