Court File and Parties

Citation: Driver v. wpd Canada Corporation, 2017 ONSC 5747 Divisional Court File No.: 439/15 Date: 2017-10-24 Superior Court of Justice – Ontario Divisional Court at Toronto

Re: Elizabeth Driver and Edwin Rowse, Applicants And: wpd Canada Corporation, wpd White Pines Wind Incorporated and Director, Ministry of Environment and Climate Change, Respondents

Before: Kiteley, Lederer and Matheson JJ.

Counsel: Ralph Cuervo-Lorens and Talia Gordner, for the Applicants Andrew Faith, for the Respondents wpd Canada Corporation and wpd White Pines Wind Incorporated Judith Parker, for the Respondent Director, Ministry of the Environment and Climate Change

Heard at Toronto: In Writing.

Costs Endorsement

Kiteley and Matheson JJ.

[1] This costs endorsement arises from our decision dismissing an application for judicial review in this matter, as set out in Driver et al. v wpd Canada Corporation et al., 2017 ONSC 3824.

[2] The applicants challenged the approval of a wind farm project based on a number of issues, including the adequacy of the consideration given to heritage resources in the area. The applicants are local residents with property that they submit is affected by the approval. They are also heritage professionals. The respondent wpd White Pines Wind Incorporated (“WPD”) was successful in defeating the application and requests costs on a substantial indemnity basis in the amount of $163,961.25. The respondent Director, also successful, does not seek costs. The applicants, although unsuccessful, not only oppose any cost award being made against them but also seek a costs order in their favour in the amount $369,992.55.

[3] The general principles applicable to party and party costs are well-settled. Costs are discretionary. Rule 57.01 of the Rules of Civil Procedure sets out factors the court may consider in exercising its discretion in addition to the result of the proceeding and any written offers to settle. Overall, the objective is to fix an amount that is fair and reasonable, having regard to, among other things, the expectations of the parties concerning the quantum of costs: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paras. 26, 38.

[4] Both WPD and the applicants rely on alleged misconduct of the other side in the course of the litigation in support of their costs claims. As a result, WPD claims substantial indemnity costs and the applicants claim costs despite being unsuccessful. This was hard fought litigation, but the conduct complained of by each side does not justify these extraordinary claims.

[5] The applicants also submit that the court should make a costs order in their favour, or alternatively, make no order or a reduced order of costs against them, because this case engages issues of public interest and raises novel legal issues. There was an element of novelty in this case, regarding heritage issues, and as such an element of public interest as well. However, that issue was subsumed in a broad attack on the decision below that went well beyond the heritage issues and resulted in a protracted and more costly proceeding. We conclude that in this case novelty and public interest should be factored in to reduce the costs award in favour of the successful party seeking costs.

[6] WPD succeeded on the application and should have a costs order in its favour. Its claim, on a partial indemnity basis, is $113,271.43, inclusive of fees, disbursements and applicable taxes. From the standpoint of the reasonable expectation of the parties, this amount compares very favourably to the applicants’ own costs.

[7] Bearing all relevant factors in mind in the exercise of our discretion, we order that the applicants pay costs to WPD, fixed at $75,000, inclusive of disbursements and applicable taxes.

Kiteley J.

Matheson J.

Dissenting on Costs

Lederer J. (dissenting on costs):

[1] I have reviewed the cost endorsement prepared, approved and signed by my colleagues. I see the issue differently.

[2] This was an application for judicial review. This sets it apart. Such applications do not consider disputes between private parties. By their nature these proceedings question the action and decisions of government (the Crown or those acting in its stead). The modern conception of judicial review, in Ontario, finds its provenance in the McRuer Report.[^1] It recommended that the traditional prerogative writs (certiorari, mandamus, prohibition) be consolidated into a single remedy (judicial review) and their collective application broadened. The mandate given to Chief Justice McRuer was to account for the relationship of citizens to the powers of government.[^2]

[3] The application reflects on that relationship.

[4] The problem, as I perceive it, is not with the allegations of misconduct made by wpd Canada Corporation and the applicants, each against the other. I agree with my colleagues these complaints do not justify the claims for costs that have been made. Nor is it derived from the idea that this was “public interest litigation” that reaches beyond the particular matter being considered. Again, I agree. Any novelty that may be present has been subsumed in the wide attack of the applicants on the decision to approve the project.

[5] My difficulty is with a concern for public participation. As a matter of social policy we want people to engage with government when they are unhappy with, or seek clarification of, decisions that have been made. We detract from that ambition if we too easily tell people they will have to pay costs if they engage but do not succeed, particularly in amounts as high as $75,000. I acknowledge that the submissions made on behalf of the applicants led to a proceeding that was “protracted and more costly”. Frankly I would go further. These submissions were of limited assistance because they failed to grasp the boundaries of judicial review: it is about the process not the merits.

[6] To my mind, the court should recognize that not all interactions between citizen and government will follow along the narrow paths the law sets or encompass the precision and technical understanding that those making the decision are bound to possess as a result of their responsibilities and experience.

[7] As for wpd Canada Corporation, it was in some sense a bystander to the main debate. The primary submissions in response to the applicants were made on behalf of the Director. It was with this party that the principal defence of the process rested. The concern of the corporation is a commercial concern. I wish to be clear. There is nothing wrong with this. To the contrary it is a fundamental and valid interest, however, it sets the context in which costs are sought. To my mind, those who seek approvals to construct and operate projects that, by their nature, will be controversial have to expect that those who are impacted will seek to express their concern. Unhappily, the accompanying comments may not always seem to be fully informed, responsive or appropriate; there will be times when they are. As I see it, companies wanting to undertake these projects have to be prepared, when the circumstances call for it, to accept this as a cost of obtaining the required approvals, in the vernacular, as a cost of doing business.

[8] In an earlier time the province would not seek costs. Its authority to do so was clarified by an amendment to the Courts of Justice Act, R.S.O. 1990, c. C.43 (s. 131 (2)). Even so, and despite the fact that it was successful, no costs were sought by the Director.

[9] To my mind this is the correct approach.

[10] Left to myself I would find that this is not a matter where costs should be awarded. The parties seeking them would be left to pay their own.

Lederer J.

Date: October 24, 2017

[^1]: Ontario, Report: Royal Commission Inquiry into Civil Rights (Toronto: Queen’s Printer 1968) It opens with the following words: The true nature of the powers of the government and the relationship of the individual to them can only be understood by a consideration of the legal system as a whole…

[^2]: The mandate included: After due study and consideration to recommend such changes in the laws, procedures and processes as in the opinion of the Commission are necessary and desirable to safeguard the fundamental and basic rights, liberties and freedoms of the individual from infringement by the State or any other body.