Court File and Parties

Citation: Bilodeau v. Ontario (Minister of Natural Resources), 2022 ONSC 4275 Divisional Court File No.: 145/21 Date: 2022-07-22

Superior Court of Justice – Ontario Divisional Court

Re: Peter Bilodeau, Applicant And: Her Majesty The Queen in the Right of Ontario as represented by the Minister of Natural Resources, Respondent

Before: Sachs, Sanderson and Mew JJ.

Counsel: Richard Butler, for the Applicant Shahana Kar, for the Respondent

Heard: In writing

Costs Endorsement

[1] The respondent was the successful party on this application for judicial review (for reasons reported at 2022 ONSC 1742). The parties agree that if costs are to be awarded, the amount of $20,000 all-inclusive would be reasonable.

[2] The respondent submits that there is no reason why the usual practice that costs follow the event should not be adhered to. Not only did the respondent enjoy success on all contested points; the judicial review application raised numerous important issues pertaining to environmental regulation, public safety, and insolvency law, in connection with hazardous gas wells.

[3] The applicant argues that no costs should be awarded because, although while not true "public interest" litigation, the application raised issues that were novel and of public importance extending beyond the immediate parties involved.

[4] In our view, the circumstances of this application are not analogous with cases in which a court might exercise its discretion not to award costs because the unsuccessful application was brought in good faith for the genuine purpose of having a point of law of general public interest resolved: see, generally, British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371.

[5] On the issue of novelty, the guidance provided by Spence J. in Baldwin v Daubney, 2006 33317 (ON SC), 21 B.L.R. (4th) 232, at para. 22, is instructive:

If the unsuccessful party says that he or she should be relieved from the costs rule because a novel issue was raised, it is not clear why that should be a relevant reason unless that element of novelty goes to the reasonable expectations of the party about the litigation. If the issue is truly open … the litigant could reasonably say that he or she had no proper reason to expect to fail. But if all that the litigant can say is that there was no decided case directly on the point, that begs the question about reasonable expectations. The litigant in that situation is vulnerable to the response: although there are no decided cases directly on point, the law is clearly against your case, so you should reasonably expect to lose. On this basis, the test for a novel issue based on whether the issue is an open one serves the purpose that would seem fairly to be intended to be achieved by the exception for novel issues in respect of costs awards.

[6] There are indeed very few court decisions that have considered the provisions of the Oil, Gas and Salt Resources Act, R.S.O. 1990, c P.12. In that sense, the application was novel. However, viewed in its proper context as remedial legislation concerned with environmental protection, the issues raised in the application pertaining to the application of the Act, while important, were not novel. Rather, there were decided cases in related branches of the law relating to environmental protection and responsibility which would have provided sufficient guidance for the resolution of the issues raised in the application.

[7] Accordingly, we would not exercise our discretion to depart from the usual practice that costs follow the event.

[8] The applicant shall pay the respondent’s costs, fixed in the all-inclusive amount of $20,000.

Sachs J.

Sanderson J.

Mew J.

Date: 22 July 2022