ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAMILTONIANS FOR PROGRESSIVE DEVELOPMENT et al
I. Flett, for the Hamiltonians for Progressive Development (HPD)
Applicants
- and -
CITY OF HAMILTON, FREELAND DEVELOPMENTS LTD, WASSERMAN et al, SILVESTRI INVESTMENTS, ANCASTER CHRISTIAN REFORMED CHURCH, TRADEPORT INTERNATIONAL CORPORATION, ELEFRIDA LANDOWNERS, 20 ROAD LANDOWNERS WEST, CRAIG SMITH
N. Smith, for the City of Hamilton (Hamilton)
J. Farber, for 20 Road Landowners West (Landowners)
Respondents
The Hon. Mr. Justice Kent
REASON FOR DECISION ON COSTS
1On 7 November 2013, HPD’s motion seeking leave to appeal to the Divisional Court from a decision of the Ontario Municipal Board was returnable before me. HPD’s notice of motion was out of time and, for reasons given that day, I refused any extension of the time permitted for serving and filing the notice. The motion seeking leave to appeal was then dismissed (as abandoned).
Refusal of Time Extension:
2Counsel, in their submissions, have quite properly addressed the several issues that arise when public interest litigation is before the court. Those issues must be considered when determining whether costs should be awarded on the dismissed leave to appeal motion, but it is not so clear that they should govern a disposition on a threshold or preliminary procedural point. Surely, a public interest litigant, represented by experienced counsel who has been made aware that no time indulgence will be granted, must be held to the same procedural requirements as a private litigant. For that reason alone, HPD cannot be permitted to avoid an award of costs being made against it.
3Accordingly, Landowners, whose counsel’s presence was required on 7 November 2013, is awarded costs fixed in the amount of $750.00 payable forthwith by HPD. The City of Hamilton, whose counsel argued that no extension should be granted, is awarded costs fixed in the amount of $3,975.00 payable forthwith by HPD.
Motion for Leave to Appeal to Divisional Court:
4Counsel have provided considerable case law addressing the several issues that arise when the courts consider public interest litigation. Two decisions of the Ontario Superior Court of Justice provide an excellent analysis of the relevant law:
St. James Preservation Society v. Toronto, 2006 22806 (ON SC), [2006] O.J. 2726 and
Incredible Electronics Inc. v. Canada, 2006 17939 (ON SC), [2006] 80 O.R. (3d) 723
5In the Incredible Electronics case Perell J considered what determined a litigant to be a public interest litigant. At para. 95 he stated:
“It seems clear from the case law and the literature that the conventional view is that a public interest litigant must, to some extent, manifest unselfish motives. This is expressed in the idea that the public interest litigant has little to gain financially from participating in the litigation. For example, in Office and Professional Employees’ International Union Local 378 v. British Columbia (Hydro and Power Office and Professional Employees’ International Union Local 378 v. British Columbia (Hydro and Power Authority), 2004 BCSC 422, [2004] B.C.J. No. 623, 2004 BCSC 422, the petitioning union challenged legislation about labour out-sourcing arrangements. The union was unsuccessful in its petition, challenged legislation about labour out-sourcing arrangements. The union was unsuccessful in its petition, but it argued that the proceeding was public interest litigation and that it should not be required to pay costs. Neilson J., however, ordered the union to pay costs. He concluded that the petition was brought primarily because of the effect of out-sourcing on the employment and security interests of the union’s membership and the public purposes of the litigation were secondary. Conversely, in Pauli v. ACE INA Insurance Co., 2004 ABCA 253, [2004.] A.J. No. 883, 242 D.L.R. (4th) 420 (C.A.), [page756] the plaintiffs, none of whom individually would gain more than $1,000 if successful, challenged whether automobile insurers could charge a deductible in certain circumstances. Reversing the trial judge, the Manitoba Court of Appeal held that there should be a no costs order because the chilling effect of ordering costs would discourage litigants whose stake is relatively small from pursuing a potentially meritorious representative action”.
6At para. 98 he observed that:
“altruism and having little to gain financially work better as indicia than as criteria for qualification as a public interest litigant. Put somewhat differently, altruism may be a sufficient, but it is not a necessary, criterion for qualification as a public interest litigant. Perhaps, other virtues such as courage, loyalty, patriotism, dedication to a worthy cause and the pursuit of justice may qualify the litigant as a public interest litigant.”
“At this point in its legal development, there is a certain je-ne-sais-quoi quality to the nature of a public interest litigant, but having read the literature and having through about it, it seems [page 757] to me that 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, even if he or she has his or her own selfish reasons for litigating.”
7Applying a similar analysis to HPD, it qualifies as a public interest litigant. It’s conduct is not the kind of conduct referred to in cases such as:
Friends of Greenspace Alliance v. Ottawa, [2011] O.J. No. 274
Durham Citizens Lobby for Environment Awareness and Responsibility Inc. v. Durham, [2011] O.J. No. 6343
8Both HPD and Hamilton appear to be acting in the public interest, even though they differ drastically as to what that interest ultimately may be. This is not the kind of situation where the court should be penalizing a public interest litigant with a costs order.
9Landowners, however, is a party that Ducharme, J. described at para. 23 in the Incredible Electronics decision as a “private actor”
“The same principles do not apply to a private actor, certainly not to a private actor who has done nothing illegal and has been forced to participate in the litigation. As a result, where a private actor is successful, it is more difficult to justify depriving them of the costs order they would ordinarily be entitled to”.
10Landowners are private actors who are required to participate in this litigation. They should not be deprived of their costs on HPD’s unsuccessful motion seeking leave to appeal to the Divisional Court. The quantum of costs sought by Landowners on a partial indemnity basis is appropriate, Landowners is, therefore, awarded costs fixed in the amount of $4,569.00 inclusive of disbursements and exclusive of HST, payable forthwith by HPD.
KENT, J.
Released: 22 January, 2014
CITATION: Hamiltonians for Progressive Development v. City of Hamilton, 2014 ONSC 420
COURT FILE NO.: DC-13-493
DATE: 2014/01/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAMILTONIANS FOR PROGRESSIVE DEVELOPMENT et al
Applicants
- and -
CITY OF HAMILTON, FREELAND DEVELOPMENTS LTD, WASSERMAN et al, SILVESTRI INVESTMENTS, ANCASTER CHRISTIAN REFORMED CHURCH, TRADEPORT INTERNATIONAL CORPORATION, ELEFRIDA LANDOWNERS, 20 ROAD LANDOWNERS WEST, CRAIG SMITH
Respondents
REASONS FOR DECISION ON COSTS
KENT, J.
Released: 22 January, 2014