COURT FILE NO.: 05-DV-1152

05-DV-1200

Released: July 4, 2006

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

CUNNINGHAM A.C.J., LANE AND HACKLAND JJ.

B E T W E E N:

ANN GRAY by her litigation guardian JAMES GRAY

Applicant

and

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, DALTON MCGUINTY, SANDRA PUPATELLO AND JOHN DOE

Respondents

Brenda Hollingsworth and David Hollingsworth, for the Applicant

Dennis Brown, Q.C., Lise Favreau, Darrell Kloeze and Sean Hanley, for the Respondents

• and -

FRANCES VENTOLA by her litigation guardian ANTONIETTA JEFFREY, KATHRINE ANNE MACPHERSON by her litigation guardian JUANITA MACPHERSON, AND DONALD BILLINGTON by his litigation guardian SUSAN BILLINGTON

Applicants

and

SANDRA PUPATELLO, HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO, HURONIA REGIONAL CENTRE, and MICHAEL CILLIS

Respondents

R. Douglas Elliott and Gabriel R. Fahel for the Applicants

Dennis Brown, Q.C., Lise Favreau, Darrell Kloeze and Sean Hanley, for the Respondents

Laurie S. Redden, for the Public Guardian and Trustee

Raj Anand and Megan E. Ferrier, for the Intervenor, Community Living Ontario

HEARD: By Written Submissions

COSTS ENDORSEMENT

By the Court: -

1The Applicants seek their partial indemnity costs of this proceeding. They do so on the basis that they achieved success on one of the two principal issues before the Court and on the basis of case law that recognizes the need for Courts to exercise their costs jurisdiction in such a way as to encourage public interest litigation where appropriate, and to facilitate access to justice. Rule 57.01 provides that in awarding costs the court may consider in addition to the result in the proceeding, any other matter relevant to the question of costs. The Respondent, the Government of Ontario, argues that it achieved substantial success in the result and would normally be entitled to costs. Notwithstanding this the Respondent has decided not to seek costs against the Applicants and has undertaken to pay the Applicants’ disbursements.

2The Applicants’ principal argument was that the Minister lacked the statutory power to close the two long-term care institutions in question. They were not successful in this position. Their argument was supported by detailed factual submissions, including experts affidavits, directed to the proposition that the government’s de-institutionalization program was contrary to the best interests of the current population in the two facilities. This Court did not accept the Applicants’ arguments. The relatively discrete question of statutory interpretation was made very complex by the attack on the merits of the de-institutionalization program and the necessity for the Respondent to reply to that submission with detailed materials. Cross-examinations were carried out at considerable length.

3We are of the view that the Applicants did achieve partial success on the issue of consent for the relocation of the residents. The Applicants’ initial argument was that no resident could be required to move from the institution without the consent of his or her substitute decision maker and therefore the resident could choose to remain in the institution indefinitely. The Respondent’s position was that while they had not moved any resident in the face of opposition from the residents’ substitute decision maker, their legal obligation consisted of consulting with the substitute decision maker. During argument it was ultimately conceded by the Respondent that in the event of disagreement between the Ministry and the substitute decision maker as to what constituted a suitable community placement (or related issue), the question would be brought before the Court by the Ministry. The Court ultimately dismissed the application for judicial review but granted this declaratory relief:

(a) No incapable resident of the Rideau Regional Centre or the Huronia Regional Centre shall be transferred to any other residence without the consent of a substitute decision maker on behalf of that resident, who shall be a family member or in the absence of a family member, the Public Guardian and Trustee.

(b) Decisions to give or refuse consent to the transfer of an incapable resident from Rideau Regional Centre or Huronia Regional Centre shall be made in the incapable person’s best interests.

(c) Any disagreement between the substitute decision maker and the Ministry of Community and Social Services may be resolved by application to the Superior Court of Justice.

As noted, we accept that the Applicants achieved partial success on the consent issue and that the determination of that issue was of importance to the disposition of the proceeding.

4As reflected in the court’s reasons, the fundamental interests of approximately 1000 severely disabled adults will be affected by this decision. The vast majority of these individuals and their substitute decision makers would not be expected to be heard from unless counsel were prepared, as they were here, to advocate their position. Furthermore, the quality of that advocacy was such as to greatly assist the Court.

5This was not a Charter case as such, but did involve the Applicants’ Charter protected interests. Access to justice is a consideration of importance in dealing with the rights of disadvantaged groups. In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] S.C.J. No. 76 the Supreme Court, in deciding whether to award interim costs to allow the Band to continue the litigation, commented:

¶ 27 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.

6Having regard to the considerations mentioned previously, we propose to grant to the Applicants in the Gray application and to the Applicants in the Ventola application approximately one third of their claimed partial indemnity costs, primarily to recognize their limited success in the matter but their nonetheless important contribution on behalf of this large group of disadvantaged adults. They should be entitled to an award that reflects a counsel fee for the two days of argument and for a portion of the 5 days of cross-examination on the affidavits. Some of the material filed was designed to challenge the merits of the de-institutionalization program (which the court did not accept), but much of it was also relevant to the consent issue.

7Mr. Elliott (1984 call), senior counsel for the Ventola Applicants, put forward a bill of costs claiming 160 hours at a partial indemnity rate of $280, his colleague Ms LeFebour (1994 call) 134 hours at $240 per hour, Mr. Fabel (2003 call) at $180 per hour and 2 other lawyers and a student for more limited roles, for a total fees of approximately $130,000. Mr. Elliot has submitted that a costs award of $85,000 in respect of fees is fair and reasonable in the circumstances.

8The Gray application was handled almost entirely by Ms Hollingsworth (1997 call). Her partial indemnity rate is $225 per hour and her total claim for fees is $60,000 for the judicial review application and $44,000 for the injunction hearing before Smith J. Justice Smith was of the view that the relief sought in the Gray class action should properly be put forward in a judicial review application and he adjourned the proceeding to the Divisional Court where it was subsequently argued with the Ventola proceeding.

9Counsel for the Gray Applicants and for the Ventola Applicants appropriately divided their submissions and shared the cross-examinations so as to minimize unnecessary costs. Their respective time records show a roughly similar expenditure of time. In all the circumstances it would be equitable that they each receive an equal award in respect of their claim for partial indemnity fees.

10As the Court of Appeal has pointed out the overriding principle in assessing costs is “reasonableness” and that the fixing of costs is not simply a mechanical exercise, see Boucher v. Public Accountants Council (Ontario), [2004] O.J. No. 2634. Rule 57 has been amended to incorporate this principle.

11The Ventola Applicants are awarded a portion of their costs of this proceeding on a partial indemnity scale in the sum of $35,000 and the Gray Applicants are awarded their costs on the same basis also in the sum of $35,000. We make no order concerning the Applicants’ disbursements in view of the Respondents’ undertaking to reimburse this expense.

“Cunningham, J.”

Cunningham A.C.J.

“Lane, J.”

Lane J.

“Hackland, J.”

Hackland J.

Released: July 4, 2006

COURT FILE NO.: 05-DV-1152

05-DV-1200

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)