COURT FILE NO.: 447/05

DATE: 2007-01-29

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, CHAPNIK and G. P. SMITH JJ.

B E T W E E N:

TIMOTHY VEYSEY

Applicant

• and -

SUPERINTENDENT OF MAPLEHURST CORRECTIONAL COMPLEX, MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, and ATTORNEY GENERAL OF ONTARIO

Respondents

Nancy Charbonneau for the Applicant

Daniel Guttman for the Respondents

HEARD: Submissions as to costs in writing, November, 2006

E N D O R S E M E N T A S T O C O S T S

LANE J.:

[1] On 30 October 2006, we dismissed the applicant’s motion for judicial review of a disciplinary decision involving him made by the respondent Superintendent. The respondents now ask for costs of the application. They submit that their Bill of Costs properly amounts to $14,100 on a partial indemnity costs basis, inclusive of disbursements, but that they seek only $7,000.

[2] Counsel for the respondents was called in the year 2000 and spent 141 hours preparing for and attending at the hearing. Counsel submits, in support of this large number of hours, that the applicant raised a “plethora” of issues, including constitutional ones, which required a detailed response, but were dismissed by the Court after a hearing of somewhat more than a full day. We do not doubt that the case called for many hours of work. The applicant’s counsel advised that she had put over 200 hours into the case. She did not seek to attack the costs on a quantum basis at all. Her case was that there should be no costs on public interest grounds.

[3] This case was an application by an inmate in a correctional institution to review the actions of those in whose custody he was kept. This is similar to the sort of case in which courts have exercised their discretion to relieve a litigant of the burden of costs in order to encourage public interest litigation and ensure that there is access to justice for the weakest citizens in the community. She submitted that the applicant was acting as a public interest litigant, albeit it was his own case, raising issues of great importance to all inmates, including both those convicted and those on remand. He sought no monetary relief, but rather a re-hearing of his case with greater procedural safeguards in place that would also be in place for others. While he lost the case, it did raise important issues and bringing the application was not unreasonable.

[4] Counsel referred us to a number of cases that she submitted were comparable to this case and where the court declined to award costs on the grounds on which she relies. These included Valpy v. Ontario (Commission on Election Finances) (1989), 67 O.R. (2d) 748 (Div. Ct.) where the court allowed the applicant journalist’s request for access to certain election finance records and said:

As this application concerned a matter of considerable public interest and as both parties have acted in complete good faith, this is not an appropriate case for costs.

[5] In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 (paragraph 69), the Supreme Court said:

The [Foundation] has, on behalf of children, brought an important issue of constitutional and criminal law that was not otherwise capable of coming before the court. This justifies deviating from the normal costs rule and supports an order that both parties bear their own costs throughout.

[6] In my view, the issues raised by the applicant were of potential importance to all inmates, not only because their residual liberties were at stake, but because their misconduct record while in custody follows them throughout the correctional system, potentially affecting placement, transfer and parole decisions. I agree with the applicant that a review of the procedures used to reach inmate misconduct decisions was needed to ensure that the procedure was fair not only in Mr. Veysey’s immediate case, but throughout the system.

[7] Although the applicant was by no means disinterested in the outcome of his own case, he sought no financial compensation but rather sought a procedural review that would benefit others and this factor, added to his vulnerable position as an inmate, makes it reasonable to consider the case as a public interest case. As Perell J. observed in Incredible Electronics Inc. v. Canada (Attorney General), [2006] O.J. No 2155 at para. 99:

Sometimes a relevant but not determinative feature is that the public interest litigant is either the "other", a marginalized, powerless or underprivileged member of society or the public interest litigant speaks for the disadvantaged in society.

[8] The second string to Ms. Charbonneau’s bow is the access to justice aspect of the case. She relies on the Supreme Court’s decision in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] S.C.J. No. 76, where LeBel J. for the Court said:

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 matter of consequence to the community as a whole.

[9] As Ducharme J. pointed out in Saint James Preservation Society v. Toronto (City) et al., [2006] O.J. No. 2726, the Okanagan case dealt with constitutional rights and so LeBel J. understandably spoke of such rights, but his rationale applies equally to public interest litigation which lacks a constitutional dimension.

[10] A similar view was expressed by Sharpe J. in Re Mahar and Rogers Cablesystems Limited (1995), 25 O.R. (3d) 690 at 704-705 (S.C.J.):

[P]ublic interest litigants are in a different position than parties involved in ordinary civil proceedings. The incentives and disincentives created by costs rules assume that the parties are primarily motivated by the pursuit of their own private and financial interests. An unrelenting application of those rules to public interest litigants will have the result of significantly limiting access to the courts by such litigants. Such a consequence would be undesirable with respect to proceedings such as the present one which was, in my view, brought on a bona fide basis and which raised a genuine issue of law of significance to the public at large.

[11] Counsel submits that “awarding costs against Mr. Veysey would be a brutal deterrent to future inmates seeking to protect or further inmates’ rights in Ontario”. I agree with that statement, as well as with her other submissions as to public interest litigation. To a prisoner in a correctional facility, it matters not that the costs amount is voluntarily reduced by the Ministry: even $7,000 sends the message that prisoners are not welcome. It is not in the public interest to create such a barrier to justice for some of our community’s most unfortunate members, who are incarcerated and helpless if those in positions of power over them should mis-use that power, whether through ignorance, carelessness or worse. Where, as here, the litigation by such a citizen raises bona fide issues of law or procedural fairness of importance to the community, it is appropriate to exercise our discretion in the matter of costs.

[12] For these reasons, I would order that the parties bear their own costs throughout.

Lane J.

Chapnik J.

G.P. Smith J.

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