Court of Appeal for Ontario

Citation: PC Ontario Fund v. Essensa, 2012 ONCA 531
Date: 2012-08-07
Docket: C54654

Before: Sharpe, Gillese and Epstein JJ.A.

Between:

PC Ontario Fund and Progressive Conservative Party of Ontario
Applicants (Appellants)

and

Greg Essensa, Chief Electoral Officer
Respondent (Respondent)

Counsel:
W. Thomas Barlow and Z. Maladwala, for the appellants
John B. Laskin and Andrew Bernstein, for the respondent
Paul Cavalluzzo, for the intervener Working Families Coalition (Canada) Inc.
Jack B. Siegel and Melanie Francis, for the intervener Laura Miller on behalf of the Ontario Liberal Party

Heard: June 21, 2012

On appeal from the order of the Divisional Court (Wilson, Swinton and Lederer JJ.), dated April 27, 2011 with reasons reported at 2011 ONSC 2641.

Endorsement Re Costs

[1] We have now received submissions from Working Families Coalition (Canada) Inc. ("WFC") requesting costs of the appeal.

[2] WFC was granted leave to intervene as an added party to the application for judicial review before the Divisional Court on the following term:

WFC shall not seek costs, nor may any costs be awarded against it except if WFC seeks to argument the record …

[3] WFC submits that that order applies only to the proceedings before the Divisional Court and that as the appellants chose to take the matter to the Court of Appeal, WFC should be permitted to recover its costs of the appeal.

[4] We disagree. The term of the order granting WFC leave to intervene as an added party benefitted WFC to the extent that it immunized WFC from any exposure to costs of the application for judicial review. In our view, if WFC wished to change its position with respect to costs, it should have made that position clear to the parties and to the court prior to the hearing of the appeal. To permit WFC to escape the limiting term of the order upon which it was permitted to intervene in this proceeding after it has learned the result of the appeal would be fundamentally unfair to the appellants.

[5] Accordingly, there shall be no order as to costs in favour of WFC.

"Robert J. Sharpe J.A."

"E.E. Gillese J.A."

"Gloria Epstein J.A."