COURT FILE NO.: 283/07
DATE: 20071029
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
IN THE MATTER OF THE Judicial Review Procedure Act,
R.S.O., c.J.1 as amended
RE: BRYCE MULLIGAN, MATHEW HUNTER and
HSIA-PAI PATRICK WU
Applicants
- and -
LAURENTIAN UNIVERSITY
Respondent
BEFORE: CARNWATH & C. CAMPBELL JJ.; KITELEY J. (dissenting)
COUNSEL: Peter Rosenthal, for the Applicants
Thomas N. T. Sutton, for the Respondent
COSTS ENDORSEMENT
CARNWATH J.:
[1] On August 15, 2007, this Court heard and dismissed the applicants’ request for judicial review of the decision to deny them admission to the Master’s of Science in Biology program (“M.Sc. Biology”) at the respondent, Laurentian University. The applicants made allegations of bias and procedural unfairness and sought to overturn the Guaranteed Minimum Stipend policy implemented by Laurentian University’s Biology Department to improve the quality of its research environment.
[2] Laurentian University seeks costs on a partial indemnity basis in the total amount of $47,477.20, comprising $36,124.50 in fees, $8,665.31 in disbursements and $2,687.39 GST.
[3] Laurentian University submits that as a public institution, with a limited budget, scarce resources were diverted in order to respond to legal challenges. In this case, the university submits that it ought to be indemnified for its measures taken to respond to this application, in accordance with the following factors provided for by Rule 57 of the Rules of Civil Procedure.
(a) the amount claimed and the amount recovered in the proceeding
[4] The University submits that although no monetary amount was claimed, the applicants challenged the right of Laurentian University’s Department of Biology to control its own academic policies and priorities. Consequently, the University was required to respond vigorously to this application. We agree.
(b) the complexity of the proceeding
[5] The University submits that the issues in this application were both factually and legally complex. This warranted a significant investment of time in preparing properly responsive and detailed responding materials. Similarly, a considerable amount of time was spent preparing the written argument, including time spent on legal research. We agree.
(c) the importance of the issues
[6] The University places considerable importance on the issues brought before the Court by the applicants. The applicants sought judicial review of matters which the University viewed as within its domestic jurisdiction. The applicants were also seeking to set aside a policy that had been in place at the Department of Biology since January, 2006. This policy was in place as a means of improving the quality of the research environment and calibre of incoming students at the Department of Biology. The policy was also created in response to recommendations by the Ontario Council on Graduate Studies (“OCGS”) which resulted in the Department of Biology being classified by the OCGS as one of Good Quality.
[7] The University underscores that the applicants forcefully alleged bias in the admissions process and directly impugned the credibility of several University administrators and faculty members. These allegations were not originally pleaded in the Notice of Application, but were first raised by applicants’ counsel during Dr. Colilli’s cross-examination. Nevertheless, the University was thereafter required to forcefully respond to these unfounded allegations. Had these allegations been accepted by the Court, serious reputational harm could have befallen individuals and the University. We agree.
(d) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding
[8] The University submits it accommodated the applicants’ request for an expedited schedule. Laurentian University also co-ordinated and undertook the production of the Joint Application Record on the basis that Laurentian University’s solicitors had greater internal resources to undertake such a task in a cost-effective manner. We agree.
(e) whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution
[9] There were none.
(f) any other matter relevant to the question of costs
[10] The applicants failed to take any step to mitigate their situations once they were advised of the Oversight Committee’s decision in September, 2006. The applicants were advised to re-apply in January, 2007 though they chose not to do so. Similarly, the applicants did not re-apply for the September, 2007 term. There were other programs, such as the recently-introduced M.A. Psychology, which are not subject to the Guaranteed Minimum Stipend policy to which the applicants could have applied. The applicants did not do so.
[11] The applicants also gave evidence in cross-examination that they did not apply for scholarships or bursaries, did not attempt to upgrade their marks, or otherwise attempt to qualify for admission to the M.Sc. Biology program by meeting the requirements of the Guaranteed Minimum Stipend policy.
[12] Rather, the students chose to commence this application nearly eight months following their denial of admission to the M.Sc. Biology program.
[13] Should special consideration be given to these applicants because of their youth and because of their position as would-be graduate students? We find no special considerations. Indeed, there are troubling aspects of the application which suggest to us the applicants should bear a costs award.
[14] It must be remembered that these applicants are not strangers to litigation. Each of the applicants selected Dr. Persinger to be their thesis supervisor. This choice was made with the knowledge that Dr. Persinger had lost his privileges to conduct animal research at Laurentian University and that he had significant academic disputes with Laurentian University’s Animal Care Committee. Moreover, at the time the applications were submitted, the applicants were among twenty-three of Dr. Persinger’s students who had openly taken sides in Dr. Persinger’s disagreement with the University and had commenced a $30,000,000 civil claim against Laurentian University, its President, other officers of the University, and members of the faculty. In the course of that civil action, the case managing judge has repeatedly warned of the cost consequences of commencing the civil litigation.
[15] Any suggestion that the applicants are impecunious is contrary to what their counsel submitted at the hearing – he argued the applicants were not impecunious as a justification for not applying for bursaries or other assistance based on need. Counsel for the University submits they ought not now be permitted to rely on impecuniousness in response to a claim for costs. We agree. There is evidence that the University attempted to settle the application, as well as the civil claim. The applicants submitted a counter-offer, which we find to be so unreasonable as not to be seriously considered by the University.
[16] We are mindful that any costs award against these applicants must be imposed in the light of Boucher and that it must be in an amount that a losing party might reasonably be expected to pay.
[17] Laurentian University shall have its costs, comprising fees of $15,000, disbursements of $8,665.31, plus applicable GST, payable by the applicants as follows:
Each applicant shall be responsible for one-third of the costs award limited to $5,000 for fees, $2,888.43 for disbursements, plus applicable GST on the foregoing amounts.
[18] The costs are calculated on a partial indemnity basis and are payable within thirty days.
CARNWATH J.
C. CAMPBELL J.
DATE: 200710
Kiteley J.: (dissenting)
[1] I agree that the applicants should be required to pay some costs. However, for the reasons that follow, I disagree with my colleagues as to the amount awarded and the date by which those costs should be paid.
[2] Mr. Sutton’s submissions included a consideration of the relevant factors under rule 57.01 and forcefully support an award of costs. I agree with his submission that the applicants challenged the right of the University to control its own academic policies and priorities and that the University would be expected to respond vigorously. I agree that the issues were factually and legally complex and that the issues were important to the respondent. I acknowledge the willingness of counsel for the University to respond to the request for an expedited schedule and to prepare the Joint Application record.
[3] Mr. Sutton also argued that there were other factors “relevant to the question of costs” that we ought to consider. He pointed out the attempts by the University to offer alternative post-graduate programs and to settle this application and the civil action. I accept his assertion that, in the management of the civil action, Regional Senior Justice Poupore has repeatedly warned of the costs consequences of commencing that civil proceeding. Mr. Sutton noted that at the hearing of the application, Mr. Rosenthal had argued that the applicants were not impecunious, as a justification for not applying for bursaries or other assistance based on need and that they ought not now to be permitted to rely on impecuniousness in response to a claim for costs.
[4] In response, Mr. Rosenthal explained his clients’ position with respect to the settlement negotiations and provided information to the effect that the resources the applicants had as an alternative to bursaries and need-based assistance had been depleted by legal expenses to prosecute this application and to live.
[5] Mr. Sutton’s submissions are compelling. However, I agree with the submission made by Mr. Rosenthal that the application was the only regulatory method by which the applicants could challenge the decision of the University. The application presented issues of first impression in this jurisdiction. Those issues were important to the University but they were also of critical importance to the careers of the applicants. Furthermore, the warning by Regional Senior Justice Poupore is not relevant to the proceeding before us.
[6] According to rule 49.10, the court must consider the offers to settle. In this case, it was appropriate for the University and the applicants to engage in a process of resolution and I commend the University for making that effort. But given the issues of principle that were at stake, it is not surprising that a resolution was not achieved. The relationship between the offers to settle and the outcome in this case does not affect costs.
[7] Section 131 of the Courts of Justice Act and rule 57.01(1)(i) give the Court latitude in the awarding of costs, including a consideration of the financial circumstances of the applicants. The successful party is entitled to some costs. However, in the unique circumstances of this case, I agree that the application was warranted and that these young students with promising futures ought not to be burdened with an award of costs against them that will impede their abilities to carry on with post-graduate education and cripple their financial futures. A modest award of costs is appropriate.
[8] The discretion to award costs includes imposing conditions as to the time within which those costs will be paid. Unless an order is made otherwise, the failure to pay the costs awarded will attract enforcement steps such as garnishees and judgment debtor examinations. In the unique circumstances of this case, these applicants should be afforded an extended period for payment that would not have such a deleterious impact while communicating that typically the successful party recovers some costs.
[9] I would have ordered that the applicants each severally pay $2500 (for a total of $7500) provided that the respondent would not be permitted to take steps to enforce the judgment for costs prior to September 1, 2008.
Kiteley J.
RELEASED: