Court File and Parties

COURT FILE NO.: 508/07

DATE: September 19 , 2008

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: JENNIFER JEREMIAH, Applicant

A N D:

ONTARIO HUMAN RIGHTS COMMISSION, TORONTO POLICE SERVICES BOARD and CHIEF, JULIAN FANTINO, Respondents

BEFORE: FERRIER, PITT and MOLLOY JJ.

COUNSEL: Ernest Guiste, for the Applicant

Anthony D. Griffin, for the Ontario Human Rights Commission

Kalli Y. Chapman for the Toronto Police Services Board and Julian Fantino

HEARD: In writing

ENDORSEMENT as to COSTS

MOLLOY J:

[1] Jennifer Jeremiah had applied to this court for judicial review of a decision by the Ontario Human Rights Commission in which the Commission decided not to proceed with her complaint of discrimination against the Toronto Police Services Board (“TPSB”) and Chief Julian Fantino. For reasons released on July 11, 2008, Ms Jeremiah’s application was dismissed. The parties have been unable to agree on costs and therefore seek to have costs fixed by the court based on written submissions.

[2] The Commission and the TPSB were wholly successful on the application and, in the normal course, would be entitled to their costs on a partial indemnity basis. The Commission claims costs in the amount of $5000.00 inclusive of fees and disbursements. The TPSB also seeks costs in the total amount of $5000.00.

[3] Mr. Guiste, counsel for Ms Jeremiah, does not take issue with the quantum of the costs claimed. The only issue raised in his submissions is whether Ms Jeremiah, although unsuccessful, should be relieved of any obligation to pay costs.

[4] I find the costs as claimed to be very reasonable. Indeed, the bills of costs have already been substantially reduced by counsel. The hours spent and the hourly rates charged are appropriate and the disbursements are in order. As noted by respondents’ counsel, in her factum Ms Jeremiah sought $10,000 in costs in the event she was successful in her application. It therefore cannot be said that the amounts claimed for costs by the respondents are not within the reasonable expectation of the parties.

[5] I reject any suggestion in the submissions of Mr. Guiste that Ms Jeremiah should not have to pay costs because she has a meritorious case against the TPSB. There has never been a finding upholding any of the allegations asserted by Ms Jeremiah. The Crown withdrew the criminal charge that had been filed against her, while stating on the record that he was doing so due to various factors including Ms Jeremiah’s age and lack of criminal record and notwithstanding the fact that the Crown expected to be able to prove the charge. Ms Jeremiah sued the TPSB for civil damages alleging, inter alia, that she had been wrongly charged because of her race. After a trial before a jury, her action was dismissed on its merits, with specific findings by the jury that she had not been charged because of her race.

[6] Stripped of hyperbole and irrelevancies, the submission on behalf of Ms Jeremiah is two- fold: 1. her application raised issues of public policy against state actors and, although unsuccessful, she should not be penalized in costs as this would deter others from asserting such claims; and 2. Ms Jeremiah is impecunious and a cost award would be an undue burden on her in all the circumstances.

[7] In support of her position, Ms Jeremiah filed an affidavit. She states that she is a single mother of two teen-aged daughters. She does not state their ages. She states that she lost one of her two full-time jobs as a result of the criminal charge against her (which was laid in May 2002). She states that she supports her family on one income, but does not state how much income that is or where she works. It is unclear if her daughters actually reside with her, although I am prepared to assume that they do. She says that after paying necessaries such as rent, car payment, insurance, cable, internet, phone, groceries and incidental school costs for her daughters, she has “virtually no money left over”. She denies owning any real estate, but makes no mention of other assets. In short, this is not a very fulsome description of Ms Jeremiah’s financial position. It is unclear to me whether Ms Jeremiah is truly impecunious. However, I accept that she is a person of limited means for whom a $10,000.00 cost award would be a great burden.

[8] I also recognize that issues of public policy and public interest were involved in this case. That is not to say that Ms Jeremiah had a meritorious case; she did not. However, access to justice cannot be a privilege afforded only to those with iron-clad cases. Persons with arguable human rights cases should not be deterred from bringing them before the courts for fear that if unsuccessful they will face financial ruin.

[9] Within the system for adjudicating human rights claims under the Human Rights Code, a person alleging a violation of his or her rights has no exposure to an adverse costs award, even if the matter proceeds all the way through a full hearing and the complainant is unsuccessful. There is an important public policy purpose underlying that legislative scheme, and a recognition by the Legislature that persons seeking redress for human rights violations should not be reluctant to come forward for fear of adverse financial consequences if their claims are not proven. Once the case moves out of the administrative tribunal regime and into the courts, the costs provisions applicable to all civil cases apply. However, in exercising its discretion with respect to whether to award costs, it is relevant and appropriate for the Court to consider the same kind of public interest issues that underlie human rights legislation. In this case, it is also relevant that that one of the respondents is the Ontario Human Rights Commission and the other respondent is also a public agency involved in the administration of justice.

[10] Accordingly, in my view, it is appropriate to relieve Ms Jeremiah of the obligation of paying costs both because of the public interest issues raised and because of her own difficult financial circumstances. That said, I note that in her civil action she was also not ordered to pay costs. It is an exceptional situation for a successful litigant to be deprived of costs. Ms Jeremiah should be aware that the fact she has now been excused from paying costs twice is in no way an indication that she will always be entitled to such relief.

MOLLOY J.

FERRIER J.

PITT J.

Released: September 19, 2008