COURT OF APPEAL FOR ONTARIO

DATE: 20040330

DOCKET: C39885, C39895

RE: ONTARIO HUMAN RIGHTS COMMISSION (Respondent/Respondent) – and – RAY BRILLINGER and THE CANADIAN LESBIAN AND GAY ARCHIVES (Complainants/Appellants) – and – SCOTT BROCKIE and IMAGING EXCELLENCE INC. (Defendants/Respondents) – and THE CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN RELIGIOUS FREEDOM ALLIANCE and THE EQUALITY COALITION (Intervenors)

AND RE: ONTARIO HUMAN RIGHTS COMMISSION (Respondent/Appellant) – and – RAY BRILLINGER and THE CANADIAN LESBIAN AND GAY ARCHIVES (Complainant/Respondent) – and – SCOTT BROCKIE and IMAGING EXCELLENCE INC. (Defendants/Respondents) – and THE CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN RELIGIOUS FREEDOM ALLIANCE and THE EQUALITY COALITION (Intervenors)

BEFORE: GOUDGE, MACPHERSON JJ.A. and LANE J. (ad hoc)

COUNSEL: Linda M. Plumpton for Ray Brillinger and The Canadian Lesbian and Gay Archives Hart Schwartz for Ontario Human Rights Commission Philip H. Horgan for Scott Brockie and Imaging Excellence Inc.

HEARD: March 25, 2004

On appeal from the order of the Divisional Court (Justice Edward F. Then, Justice A. Donald K. MacKenzie and Justice Donald R. Cameron) dated December 11, 2002.

E N D O R S E M E N T

[1] The appellants, the Ontario Human Rights Commission and Ray Brillinger, appeal the costs order of the Divisional Court dated December 11, 2002. Although the court dismissed most of the appeal brought by the respondents, it awarded costs of $25,000 in favour of the respondents against the OHRC, Brillinger and Archives.

[2] Although costs orders are entitled to substantial deference, this particular cost order simply cannot stand. We say this for several reasons.

[3] First, the respondent did not seek costs against Brillinger. In addition, Brillinger was entirely successful on the appeal. Accordingly, there is no basis for awarding costs against him.

[4] Second, the respondent’s “material success” was on a single, minor issue. Indeed, it is likely that the slight change in the tribunal’s order by the Divisional Court had no impact on the respondents’ legal rights. At most, the respondents’ success was minuscule compared to the appellants’ success on all the other issues in the appeal. The Divisional Court erred in principle in finding that the respondents achieved substantial success and founding its cost order on that basis.

[5] As the successful parties, the OHRC and Brillinger are presumptively entitled to their costs in the Divisional Court. We see no basis to award otherwise in this case.

[6] Although Brillinger was represented by pro bono counsel, that should not disentitle him to costs. The Divisional Court’s reasons for denying costs (“the funding for the pro bono work must come from somewhere, possibly from charity”) is not only pure speculation; it is also wrong − Brillinger’s counsel informed the court that he had taken the appeal on a pro bono basis, and without any outside funding. The Divisional Court’s concern about an uneven playing field overlooks the problems created by refusing pro bono counsel the opportunity of recovering some of their outlay. Such a policy would act as a severe penalty to lawyers acting in the public interest by making it possible for litigants of modest means to access the courts.

[7] Accordingly, the appeal is allowed and the order of the Divisional Court is varied to provide for costs to the OHRC on a partial indemnity basis fixed at $15,000, inclusive of disbursements and GST.

[8] The appellant Brillinger is also entitled to some costs, also on a partial indemnity basis. However, those costs should be very modest indeed. The OHRC, by statute, has carriage of a human rights complaint. A complainant is entitled to appear as a party and be represented separately. However, this is more a choice than a necessity. In this case, there is no suggestion that there was a divergence of interest between the OHRC and Brillinger. Nor is there a suggestion that the OHRC provided anything other than thoroughly competent presentation of the appeal. Moreover, the respondents did not seek costs from Brillinger in the Divisional Court and it would be unfair now to require them to pay costs to Brillinger on an unreduced partial indemnity basis. In these circumstances, the respondents should not have to pay two significant amounts of costs. We fix Brillinger’s costs before the Divisional Court at $5,000, inclusive of disbursements and GST.

[9] The OHRC and Brillinger are entitled to their costs of the appeal. In this court, Brillinger and the Archives have an interest separate from the OHRC; they are here challenging costs orders against them. Accordingly, both appellants are entitled to their costs of the appeal fixed at $5,000, inclusive of disbursements and GST.

“S. T. Goudge J.A.”

“J. C. MacPherson J.A.”

“G. D. Lane J.”