ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, FERRIER & O’CONNOR JJ
B E T W E E N:
DALE BROOMER, on his own behalf and as litigation guardian for KYLA BROOMER, EMILY BROOMER and TRAVIS BROOMER, PAULETTE DUKE, on her own behalf and as litigation guardian for KEENAN HUGHES, MADISON HUGHES and ETHAN DUKE and ROBERT BEAUPARLANT
Applicants
- and -
ATTORNEY GENERAL OF ONTARIO, THE DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM, THE ADMINISTRATOR OF THE NIPISSING SOCIAL SERVICES ADMINISTRATION BOARD and THE ADMINISTRATION OF THE KAWARTHA LAKES/HALIBURTON SOCIAL SERVICES ALLIANCE
Respondents
Steven M. Barrett and Charlene Wiseman, for the Applicants
Daniel Guttman, for the Respondents
A N D B E T W E E N:
EUGENE JOHNSON
Applicant
- and -
ATTORNEY GENERAL OF ONTARIO, DIRECTOR OF ONTARIO WORKS, ADMINISTRATOR OF DISTRICT OF THUNDER BAY SOCIAL SERVICES ADMINISTRATION BOARD
Respondents
A N D B E T W E E N:
ROBERT F. RHUDE
Appellant
- and -
THE ADMINISTRATOR, SOCIAL SERVICES DEPARTMENT COUNTY OF VICTORIA
Respondents
- and -
ATTORNEY GENERAL OF ONTARIO
Intervener
HEARD AT TORONTO: April 16, 2004
REASONS FOR RULING
1Dale Broomer, Paulette Duke, and Robert Beauparlant were recipients of social assistance from the Province of Ontario. They were declared permanently disentitled to assistance in 2000 when they were convicted of offences related to their benefits, pursuant to the Regulations of the Ontario Works Act. A full review of the applicants’ family, living, and financial circumstances is set out in Nordheimer J.’s ruling in Broomer v. Ontario (Attorney General) [2002] O.J. No. 2196. Suffice it to say, they were all poor, underprivileged, and, in two cases, disabled Ontarians.
2The applicants brought this proceeding for a declaration that their ‘lifetime ban’ violated their rights protected by ss. 7, 12 and 15 of the Charter of Rights and Freedoms. The respondents, Attorney General of Ontario, the Director of the Ontario Disability Support Program, and two social service agencies, vigourously defended the application. Before the matter could be heard by this Court, a newly elected government repealed the lifetime ban Regulations. The parties entered into minutes of settlement resolving all issues favourably to the applicants, save for costs. The minutes provided the settlement was made without prejudice to either party seeking costs in court.
3We are asked to decide whether the applicants should have their costs of this proceeding.
The Applicants’ Position
4The applicants admit they never had any ability to fund this expensive proceeding. Their counsel underwrote the costs because the issues were considered to be of significant public importance. They argue that the expense and complexity of Charter litigation makes it inaccessible to the average citizen, requiring most aggrieved litigants to rely on lawyers acting on a pro bono basis. Courts must recognize the benefits to the public of meritorious Charter challenges by awarding costs in appropriate cases, even, in some cases, where the applicants are unsuccessful. See Schacter v. Canada (1992), 93 D.L.R. (4th)1 (S.C.C.).
5In this case, the applicants say they have been wholly successful, having achieved the exact result they sought at the outset of the litigation. Therefore, they ought to be awarded their full costs on a partial indemnity basis.
The Respondents’ Position
6The government and the agencies argue the applicants were not successful in the application. No order has been made and no costs should therefore be awarded. The change in government policy was not precipitated by this application. The respondents did not “effectively concede the correctness of the applicants’ position …”, as the applicants argue. The repeal of the lifetime ban was simply the actions of a newly elected government which believed in and implemented a different policy. The respondents argue it is far from clear that the applicants would have been successful in their challenges, had the matter been adjudicated.
7The respondents point out that a general costs rule provides that where an applicant abandons an application, the respondent should have its costs thrown away. However, in this case, due to the uniqueness of this test case and the fact the government changed its policy, the respondents are waiving their rights to rely on the general rule. They are not seeking costs. However, the respondents ask the court not to take the extraordinary measure of reversing the general rule.
8They argue the court should order that no costs be awarded to either side.
Analysis
9The respondents rely heavily on the reasons of White J. in Diakun-Thibault v. Advocacy Commission, [1996] O.J. No. 321 (Div. Ct.)(Q.L.), wherein he states, at para. 25:
The moving parties are asking for an extraordinary reversal of the principle that the party who abandons an application for judicial review should expect to pay the responding parties' costs thrown away in that regard. An extraordinary reversal of that principle is only justifiable in extraordinary circumstances, and such extraordinary circumstances are absent on the facts in the matter under discussion.
10However, in this case, the applicants cannot be said to have abandoned their application in the traditional sense intended by the rule. The parties entered into minutes of settlement in which they all agreed to a mutually satisfactory resolution of all issues, except costs. The ensuing abandonment of the application was a logical housekeeping step necessary to discontinue the application and close the court file. In no way could it be construed as a recognition by the applicants that their proceeding lacked merit, which is the usual reason for a party abandoning its action and the rationale for the general rule requiring the abandoning party to pay costs thrown away. Had the application not been abandoned, but proceeded to a hearing, the court would have found there was no issue to adjudicate. Where the actions of the respondents render the live issue moot, thus triggering an abandonment by the other side, the respondents cannot then avail themselves of the rule giving them costs thrown away for the abandonment they precipitated. In this case, although respondents are not asking for costs, they argue the applicants are seeking to reverse the rule. They are not. The rule as enunciated in Diakum-Thibault, supra, simply does not apply in the circumstances of this case.
11The respondents argue the applicants should not have their costs because they were not successful in the application. Again, the respondents’ reasoning is flawed. Where one of the respondents, Attorney General of Ontario, undertakes an act that obviates the necessity for continuation of the application, because the applicant has achieved what it wanted, that respondent cannot then argue that the applicants were not successful. The respondent government took away the opportunity for the applicants to win their case. The applicants had their entitlement to benefits restored, which was the end result they sought. The respondents cannot, in effect, pull the rug out from underneath their opponent by acceding to their position and then arguing that position had no merit. The applicants’ position did have merit. In amending the legislation, the government agreed it did.
12Further, the respondents cannot argue the conclusion of the action was brought about merely by a coincidental or chance change in policy. They argue a new government just happened to adopt a different policy, a change that had nothing to do with the applicants’ application, but just happened to comply exactly with the relief sought by them. The government obviously changed the policy because it saw the previous one as flawed. Whatever the precise reasons for their changed policy, it mirrored the applicants’ position in their application.
13This case can be distinguished from the Diakun-Thibault, supra, case, upon which the respondents rely. In that case, it was not the actions of the respondent Advocacy Commission that brought about the applicants abandoning their application. The abandonment was precipitated by the actions of a third party, the Ontario Government, which abolished the Advocacy Commission. The government was not a party in the litigation. Further, the respondent Commission did not concede the correctness of the applicants’ position. Thus, the court noted that it could not presume the abandoned application had merit. The court did not have a chance to review the facta, or a complete record in respect of the application. See Diakun-Thibault, supra, para. 22. In the case at bar, one of the responding parties was wholly responsible for eliminating the need for the applicants to continue their litigation. The government was obviously fully familiar with the position of the applicants. All pleadings and materials had been exchanged and the matter was practically at the courtroom door.
14While these findings may in themselves provide grounds for awarding costs to the applicants, their strongest reasons for success lie in their public policy argument. As several courts have recognized, costs “can be used as an instrument of policy and that making Charter litigation accessible to ordinary citizens is recognized as a legitimate and important public policy objective.” See Epstein J. in Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 467 (S.C.J.), a case coincidently dealing with the issue of a temporary social assistance ban for criminal convictions.
15Charter litigants, particularly those seeking their equality rights under S. 15 are often disadvantaged, poor, members of powerless groups in society, disabled, or a combination of several of these categories. In this case, Mr. Broomer is visually impaired. Mr. Beauparlant suffers from manic depression, obsessive compulsive disorder, and Crohn’s Disease. Mr. Broomer, Ms. Duke and their spouses have three small children each. All applicants are struggling to feed, clothe, and provide the necessities of life for themselves and their families. None, obviously, is in any position to fund a Charter application of this nature. The only way their Charter challenge to the legislation at issue could proceed was through the pro bono intervention of lawyers experienced in this area of law. It is therefore appropriate to award costs to lawyers acting in this capacity in order to encourage them to continue taking on cases of this nature. Their continued participation in pro bono work ensures that disadvantaged citizens, such as these applicants, receive access to justice.
16As early as 1986, in Canadian Newspapers Co. v. Attorney-General of Canada (1986), 32 D.L.R. (4th) 292 (H.C.J.) the court noted that “it is desirable that bona fide challenge is not to be discouraged by the necessity for the applicant to bear the entire burden…” pp. 305-6. In Re Lavigne v. Ontario Public Service Employees Union (No. 2) (1987), 60 O.R. (2d) 486 (H.C.J.) White J. awarded costs to the successful party even though the litigation was being financed by a third party. Using the traditional approach, Mr. Lavigne would not have been entitled to his costs. The court said at p. 526 that “it is desirable that Charter litigation not be beyond the reach of the citizen of ordinary means.”
17These cases are referred to with approval in a recent decision of the Supreme Court of Canada on the issue. In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 233 D.L.R. (4th) 577, the court thoroughly explored the circumstances in which courts may depart from and broaden the traditional criteria for awarding costs. The court reviews the well established purposes for costs awards. It summarizes them generally as meeting the requirement “to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed)”. Para. 21. The court then reviews the special factors that would warrant a departure form the traditional principles. At paragraph 27, LeBel J. says:
Another consideration relevant to the application of costs rules is access to justice. This factor has increased in importance as litigation over matters of public interest has become more common, especially since the advent of the Charter. In special cases where individual litigants of limited means seek to enforce their constitutional rights, courts often exercise their discretion on costs so as to avoid the harshness that might result from adherence to the traditional principles. This helps to ensure that ordinary citizens have access to the justice system when they seek to resolve matters of consequence to the community as a whole.
18This is not to say the government should be treated as a bottomless pit of funding for every Charter challenge thought up by inventive legal minds. The applicants must be able to show significant merit to their cause, that is, a real possibility of ultimate success, or, as in this case, the actuality of success. See Canadian Newspapers Co., supra, at p.306.
19Although the Okanagan case dealt with a claim for interim costs to enable the respondent Indian Band to continue with the litigation, the conditions to be considered for an award in that case would be applicable to all cases of public interest litigation. At paragraph 40, LeBel J. summarizes his discussion of the criteria as follows:
The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.
The claim to be adjudicated is prima facia meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolves in previous cases.
20In this case, these three conditions have clearly been met. That is, the applicants cannot afford to pay for the litigation, their claim was prima facia meritorious and the issues transcend the individual interests of the particular litigants, are of public importance, and have not been resolved in previous cases. Although this litigation did proceed despite the applicants’ impecuniosity, it did so only through the public spirited generosity of their counsel. As noted above, and in the Rogers, supra, and the Canadian Newspapers Co., supra, cases, there is public interest in encouraging experienced counsel to undertake Charter litigation of broad concern on a pro bono basis. This encouragement must take the form of the real possibility of receiving costs in appropriate cases that meet the criteria set out in Okanagan, supra.
Conclusion
21For these reasons the Applicants shall have their costs. The applicants filed a bill of costs seeking partial indemnity costs in the sum of $308,926.84 including disbursements and GST. The bill is 27 pages long and reveals in detail all steps taken from March 2002 to February 2004. We agree with the submissions of the Applicants in their factum that considering the importance of the issues, the multiplicity of steps, the scope and complexity of the evidence, the extent of the examinations (fourteen volumes of transcripts) and the scope and complexity of the legal issues (revealed in a draft factum 49 pages long), the sum claimed is reasonable and appropriate.
22There will be judgment accordingly.
FERRIER J.
O’CONNOR J.
Released: 20040602
MATLOW, J. (Dissenting)
1With respect, I am unable to agree with the disposition of the majority. I would refuse to make any award of costs with respect to any aspect of these applications for judicial review.
2I have concluded that there is no proper basis upon which this Court can properly make any award with respect to costs. No case was cited to us by counsel in which a Court which did not actually hear and determine a proceeding awarded costs to any party without proper material being filed. In my view, the reason is obvious.
3The minutes of settlement record the agreement of the parties to what is stated to be “a full and final settlement of these judicial review applications” made “without prejudice or precedent with respect to any other case”. They provide that some of the applicants, but apparently not all, are “eligible for financial assistance under the Ontario Works Act … “ and that they “will receive benefits from the Ministry…”. The minutes also provide that “This settlement is without prejudice to either party seeking costs in court”.
4By this application for judicial review, the applicants attacked the applicable legislation and regulations on several constitutional grounds and sought various items of relief including a declaration that the legislation and regulations are “void and of no effect”.
5Contrary to what is said by the majority, not all of the issues raised by these applications have been resolved favourably to the applicants. Rather, the constitutional issues remain totally unresolved.
6We were advised by counsel that the settlement was reached because the present government took the necessary to repeal certain regulations which had previously disqualified the applicants from receiving those benefits.
7Each counsel recited the history of this litigation and its settlement from the perspective of his clients. Although they agreed on some parts, they disagreed on others. In particular, they disagreed as to whether the repeal of the regulations should be regarded as a concession by the respondents that the regulations were constitutionally void or simply as a reflection of a policy change made following a change of government. No material was filed by either side to support their respective versions.
8Technically, these applications now stand adjourned and have not yet been formally abandoned or dismissed. As a result of the execution of the minutes of settlement, they stand “settled”. The applicants are now content with what they have achieved by the settlement and their counsel advised us that they would be prepared to have us issue an order dismissing the applications provided our order contains a provision awarding costs to the applicants. The respondents do not oppose the dismissal of the applications but object to any provision awarding costs to the applicants.
9In these circumstances, there is no basis upon which this Court could or should properly interfere with the settlement reached by the parties by awarding costs. With respect, it makes no sense for parties to reach a settlement which provides that the parties may ask the Court to award costs without giving the Court sufficient material to enable the Court to consider any request for costs judicially. Without such material, any award of costs would, of necessity, have to be based on arbitrary considerations. In particular, there is no evidence before us which could establish that the applicants should be awarded costs on the basis that persons or groups who undertake expensive Charter litigation should, in appropriate circumstances, be compensated by government as a matter of public policy.
MATLOW, J.
Released: 20040602
COURT FILE NO.: 420/03
COURT FILE NO.: 578/03
DATE: 2004 06 02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, FERRIER & O’CONNOR JJ
B E T W E E N:
DALE BROOMER, on his own behalf and as litigation guardian for KYLA BROOMER, EMILY BROOMER and TRAVIS BROOMER, PAULETTE DUKE, on her own behalf and as litigation guardian for KEENAN HUGHES, MADISON HUGHES and ETHAN DUKE and ROBERT BEAUPARLANT
Applicants
- and -
ATTORNEY GENERAL OF ONTARIO, THE DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM, THE ADMINISTRATOR OF THE NIPISSING SOCIAL SERVICES ADMINISTRATION BOARD and THE ADMINISTRATION OF THE KAWARTHA LAKES/HALIBURTON SOCIAL SERVICES ALLIANCE
Respondents
A N D B E T W E E N:
EUGENE JOHNSON
Applicant
- and -
ATTORNEY GENERAL OF ONTARIO, DIRECTOR OF ONTARIO WORKS,
ADMINISTRATOR OF DISTRICT OF THUNDER BAY SOCIAL SERVICES ADMINISTRATION BOARD
Respondents
A N D B E T W E E N:
ROBERT F. RHUDE Appellant
- and -
THE ADMINISTRATOR, SOCIAL SERVICES DEPARTMENT COUNTY OF VICTORIA
Respondent
- and -
ATTORNEY GENERAL OF ONTARIO Intervener
REASONS FOR RULING
O’CONNOR J.
Released: 20040602