Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
Carnwath, Spence and Low JJ.
B E T W E E N:
COMMISSIONER, ONTARIO PROVINCIAL POLICE Applicant
- and -
KENNETH MACDONALD and ALISON JEVONS Respondents
Counsel: J. Thomas Curry and Emily McKernan, for the Applicant Julian N. Falconer and Sunil S. Mathai, for the Respondents
HEARD: Motion heard January 8, 2009
Reasons for Decision as to Costs
The Court:
1The application of the Applicant was dismissed. Costs are in the discretion of the Court. Normally, costs follow the event.
2The Applicant asserts that no costs should be awarded against it, on the basis that the present case satisfies the public interest test in Incredible Electronics v. Canada (Attorney General) (2006), 80 O.R. (3d) 723 (S.C.J.) at paras. 83, 91, 94-95 and 98. There are important public interest elements in this case. However, it is by no means clear that a litigant, such as the Applicant, that is a public authority or regulator should be recognized as a “public interest litigant” for purposes of receiving exemption from costs consequences. A public authority or regulator is “already within the public sector and can be expected to act for the public good”. (Incredible Electronics, supra, at para. 106.) Moreover, the Applicant also has a material interest in the proceeding in an important sense. If the appeal had been successful, the result would have been that the Adjudicator would not have been in a position to continue with the police disciplinary hearing that is the source of the present case and, in particular, with the motion that was and is before the Adjudicator to stay that hearing as an abuse of process on the part of the Applicant. By reason of that motion and the effect upon it that a successful application would have had, the interest that the Applicant has in the application makes it inappropriate to regard the role of the Applicant as so principally directed toward the public interest as to warrant its immunization from the normal costs result.
3The Respondents seek their costs on a substantial indemnity basis. The Respondents were reluctant parties to this application, but they were proper ones and they responded. The Respondents refer to the financial disadvantage that they have incurred, but their circumstances in that regard are not the consequence of conduct on the part of the Applicant in the course of the application. The Respondents rely on conduct of the Applicant in the abuse of process of motion, but that conduct is a matter for consideration in respect of costs on that motion and not on this application.
4As to quantum, the points made by the Respondents in paras. 17 to 22 of their submissions are satisfactory.
5Costs to the Respondents on the partial indemnity scale in the amount of $33,434.93, payable within thirty days.
Carnwath J.
Spence J.
Low J.
Released: 20090611
COURT FILE NO.: 564/08
DATE: 20090611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
COMMISSIONER, ONTARIO PROVINCIAL POLICE
- and -
KENNETH MACDONALD and ALISON JEVONS
REASONS FOR DECISION
The Court
Released: 20090611