Ontario Superior Court of Justice – Divisional Court

Jackson v. Toronto Catholic School Board

Date: 2006-09-18

Counsel: Peter J. Chapin and Margaret Parsons, for the applicant; Susan Metzler, for the respondent, Toronto Catholic District School Board; Thomas McRae, for the respondent, Joseph Comper; Cheryl Milne, for the intervenor, Canadian Foundation for Children, Youth and the Law.

(589/03)

Reasons for Decision

[1] By the Court: On July 17, 2006, this court dismissed Stephanie Jackson's application for judicial review with costs to be determined. We have now received and reviewed the parties' submissions on costs.

[2] The respondents do not seek costs against the applicants, Stephanie Jackson, personally. They do, however, claim costs as against the African Legal Clinic (the ACLC). It appears from the materials filed and at the hearing, that the ACLC acted as counsel (or co-counsel along with the Ontario Legal Aid Plan), on behalf of the applicant. The respondent, the Toronto District School Board (the Board) requests costs in the total amount of $7,320.30 ($5,000 in fees including GST and $2,320.30 in disbursements); and the respondent, Mr. Comper, claims costs in the all-inclusive sum of $8,603.04 ($5,000 in fees and GST and $3,603.04 in disbursements). Although no detailed costs outline or dockets were provided, both respondents claim this as a nominal amount; indeed, that actual counsel fees for Mr. Comper (paid by the Board) were said to have exceeded $57,000.00.

[3] Pursuant to s. 131 of the Courts of Justice Act, costs are in the discretion of the court. The general rule is that a successful party is awarded its costs as against the unsuccessful party. However, costs may be ordered against counsel or what the courts describe as a "non-litigant" or the "real litigant", in exceptional circumstances.

[4] It is well settled that such an award of such costs would only be given in instances where there is conduct that can be described as reprehensible, scandalous or outrageous. See, for example, Young v. Young et al., 1993 34 (SCC), [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; Hannigan v. Ikon Office Solutions Inc. et al., [1998] B.C.J. No. 2868; 1998 6141 (BC CA), 116 B.C.A.C. 304; 190 W.A.C. 304 (C.A.); Kent v. Waldock, [2000] B.C.J. No. 1144; 2000 BCCA 357, 139 B.C.A.C. 189; 227 W.A.C. 189; 76 B.C.L.R.(3d) 217; 2000 BCCA 357. A discussion of the types of situations that compromise special circumstances can also be found in Gulf Canada Resources Ltd. v. Merlac Marine Inc. et al. (1994), 1994 7259 (ON SC), 18 O.R.(3d) 239 (Gen. Div.).

[5] The respondents claim that the ACLC was in effect the "real litigant" and that it made allegations that were extreme and personal in nature - for example, it alleged that the respondent, Mr. Comper, was high-handed and that his actions were tainted by a reasonable apprehension of bias. Moreover, its "scatter-gun" approach claiming on behalf of the applicant, punitive and compensatory damages, was excessive.

[6] In response, the ACLC stated:

"With respect, the ACLC discharged its duties fairly and in a manner entirely consistent with the instructions of its client and with all of its professional, legal and ethical obligations."

[7] This court has no reason to believe otherwise. We find no evidence of reprehensible, scandalous or outrageous conduct on the part of the ACLC or its counsel. There is no evidence that the submissions of the ACLC made on behalf of the applicant, were misleading, dishonest or motivated by animus or bad faith.

[8] As well, costs are generally not awarded in applications for which there is a public interest component or a novel point of law. All parties agree that this matter raised novel issues of public importance.

[9] In all of the circumstances, we are of the view that an award of costs against the ACLC in this case would be entirely inappropriate.

[10] Accordingly, there shall be no order for costs.

Order accordingly.