COURT OF APPEAL FOR ONTARIO

CITATION: Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509

DATE: 20200814

DOCKET: C66494

Pepall, Tulloch and Benotto JJ.A.

BETWEEN

Friends of Toronto Public Cemeteries Inc. and Kristyn Wong-Tam

Applicants (Respondents/Appellants by way of cross-appeal)

and

Public Guardian and Trustee and Mount Pleasant Group of Cemeteries

Respondents (Appellant/Respondent/Respondents by way of cross-appeal)

Counsel:

Ronald G. Slaght, Q.C. and Margaret Robbins, for the appellant/respondent by way of cross-appeal, Mount Pleasant Group of Cemeteries

Michael S.F. Watson, Rodney Northey and Michael Finley, for the respondent/appellant by way of cross-appeal, Friends of Toronto Public Cemeteries Inc.

Tim Gleason and Amani Rauff, for the respondent/appellant by way of cross-appeal, Kristyn Wong-Tam

Dana De Sante, for the respondent/respondent by way of cross-appeal, Public Guardian and Trustee

Heard: In writing

On appeal from the order of Justice Sean F. Dunphy of the Superior Court of Justice, dated December 31, 2018, with reasons reported at 2018 ONSC 7711, 144 O.R. (3d) 521.

COSTS ENDORSEMENT

[1] The appellant, Mount Pleasant Group of Cemeteries (“MPGC”), seeks its costs from the respondents, Friends of Toronto Public Cemeteries Inc. (“FTPC”) and Kristyn Wong-Tam. It requests costs of the appeal and cross-appeal in the amount of $150,000 and costs of the underlying application in the amount of $475,000. Both sums are inclusive of disbursements and HST. The appellant does not seek any costs from the Public Guardian and Trustee (“PGT”).

[2] New counsel on behalf of Ms. Wong-Tam, who are not on the record, filed separate costs submissions and asked that this court consider them. No issue was taken in reply by the appellant. We have considered Ms. Wong-Tam’s submissions in reaching our costs decision.

[3] Typically, costs follow the event, or to use more contemporary phraseology, the result of the action. As the appellant was successful on the appeal and cross-appeal, this principle suggests an award in favour of the appellant. However, the respondents resist any such award for three principal reasons:

i. the application was brought solely in the public interest and for no personal advantage or gain;

ii. they were successful on what FTPC describes as the fundamental underlying issue in the case, the existence of the statutory trust, which was only conceded at the “eleventh hour”[^1] and which benefitted the appellant; and

iii. they successfully resisted the appellant’s argument that the respondents had no standing.

[4] Alternatively, the respondents submit that even if FTPC is not a public interest litigant, Ms. Wong-Tam is, and no costs should be awarded against her personally.

[5] We will start by addressing the respondents’ public interest argument and then will turn to the issue of quantum.

Public Interest Status

[6] The first issue to address is whether the application should be characterized as public interest litigation and, if so, whether FTPC and Ms. Wong-Tam should be excused from paying costs because they were acting in the public interest.

[7] In considering the public interest issue, we begin with the application judge’s reasons.

[8] At para. 67 of his reasons, the application judge described FTPC. He wrote: “[I]n 2013, the Applicant ‘Friends of Toronto Public Cemeteries Inc.’ was incorporated by some members of the Moore Park Ratepayers Association that had been involved in the prior interventions regarding MPGC. Since its incorporation, a number of others have joined it as members although the majority of its members are from the Moore Park area surrounding the Mount Pleasant cemetery on its southern boundary.” (This finding is reflected in part in para. 65 of this court’s reasons.) The application judge found, at para. 5, that FTPC had about 100 members.

[9] Ms. Wong-Tam was described by the application judge, at para. 5, of his reasons as “a Toronto resident who is also the City Councillor for the area (acting in her private capacity here).”

[10] The application judge identified the following issues to be addressed: the respondents’ standing to bring the application; whether the current directors of MPGC were validly appointed; was MPGC a trust and, in particular, a charitable purpose trust; had MPGC exceeded its objects as they related to its visitation centre, funeral home and crematoria operations; and would the public interest be served by ordering an investigation. He found in favour of the respondents on all issues except two. He concluded that there was an inadequate evidentiary record to address the issue of the crematoria and he decided that the public interest would not be served by an investigation. On this last point, he observed that MPGC was not a “runaway train”; there was no basis to conclude that its trustees had acted in bad faith or that they had “gone rogue”, to use his language.

[11] On the issue of standing, over the objections of the appellant, the application judge relied on the public interest status of both respondents and granted them standing. The appellant did not appeal his decision in this regard, nor did it appeal his determination that MPGC was a statutory trust, although this had already been conceded in any event.

[12] At the very end of his reasons, the application judge closed by stating that the respondents had been substantially successful in their application and were entitled to their costs. At para. 172, he wrote: “They have not acted for their personal benefit but to vindicate an important public interest.” He then sought submissions on scale and amount if the parties were unable to reach an agreement.

[13] The parties subsequently agreed to an award of $475,000 in favour of the respondents, which was higher than the partial indemnity quantum identified by them.

[14] The appellant forcefully argues that neither of the respondents is a public interest litigant, stating: FTPC was incorporated for the specific purpose of pursuing this litigation; FTPC does not rise above being an interloper or busybody; it has spread misinformation on MPGC online, casting aspersions on this court and its decision with a view to gaining control of MPGC’s Board; FTPC’s post-hearing conduct undermines its assertion of public interest status; MPGC is not a governmental body; the issues related to historical legislation arose out of a personal concern regarding the cemetery in FTPC members’ neighbourhood; and the issues did not need to be litigated.

[15] As for Ms. Wong-Tam, the appellant submits that she entered the litigation to provide standing to FTPC and did so in her personal capacity, well aware of her potential exposure for costs, as evidenced by the fact that FTPC provided her with an indemnity for any adverse costs order. Accordingly, she took steps to protect herself from having to pay a costs order herself.

[16] The court advised counsel that it did not intend to consider any post-hearing conduct in its determination of costs and it has not done so. Quite apart from the issue of relevance, the information, which was of a serious and inflammatory nature, was not contained in any affidavit or sworn document.

[17] Ignoring that issue, there is nonetheless significant force to some of the appellant’s arguments.

[18] In Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732, 343 O.A.C. 58, this court outlined factors to be considered in determining whether an unsuccessful litigant should be excused from paying costs because it was acting in the public interest. The factors include the nature of the litigants, whether the nature of the dispute was in the public interest, whether the litigation had any adverse impact on the public interest, and the financial consequences to the parties.

[19] One could readily conclude that the respondents are not public interest litigants. Unquestionably, there is an element of NIMBYism (not in my back yard) in this litigation, to use Mr. Slaght’s language, at least insofar as it relates to FTPC. Residents living near MPGC cemeteries in Vaughan, Thornhill, Pickering, Richmond Hill, Brampton, and Oshawa did not file any affidavits on the application, even though FTPC asserts now that the application was to their benefit. Moreover, it is not evident that the application would be to their benefit in any event. MPGC is a not-for-profit, non-share capital corporation and a statutory trust. The evidence is replete with references to the world-class nature of the appellant and its effective stewardship of Mount Pleasant Cemetery. Indeed Ms. Wong-Tam in her costs submissions, though quoting from evidence of MPGC, nonetheless references the fact that it is one of the “pre-eminent cemetery companies in North America”. Any benefit derived from the hearing of the application would be largely symbolic rather than real, particularly given that the appellant conceded that it was a statutory trust before the application was argued.

[20] On the other hand, the appellant did not initially concede that it was a statutory trust. The application brought by the respondents caused the appellant to eventually concede that it was a statutory trust, a factor that imports a public element. In addition, applying the relevant Sarnia factors, the appellant is financially well-resourced and readily able to bear the costs burden imposed by the litigation. FTPC represents an amalgam of individual residents (although it asserts that it was not formed as part of a local ratepayers’ association that had decided to go in a different direction). No evidence on FTPC’s ability to pay a costs award was filed as part of its costs submissions. But it was incorporated by a group of individuals engaged in the expensive process of litigation. In addition, even though the PGT never saw the need to bring any court proceedings itself, the respondents’ application resolved differences between the PGT and MPGC. In addition, the PGT supported the application, although not the respondents’ request for an investigation. Access to justice would tend to favour treating the respondents as public interest litigants although there is no evidence of any impecuniosity or inability to meet a sizable costs award. That said, in spite of the PGT’s involvement, the legal issues raised were particular to MPGC.

[21] As for Ms. Wong-Tam, she chose to participate as an individual and not in her capacity as a city councillor, stating that “maintaining public assets in the public realm is a matter close to [her] heart”, something she has “worked on as a public spirited resident of Toronto”, and because there was a statutory requirement for a second person to apply under the Charities Accounting Act, R.S.O. 1990, c. C.10, s.10(1). Presumably, at least some if not many of the individuals involved would be her political constituents, but this is not an argument raised by the appellant. However, there is no suggestion that Ms. Wong-Tam had any pecuniary interest in the application. Having brought and lost her application against MPGC before the Environmental Review Tribunal, her long-standing interest in the appellant is unquestioned. Ms. Wong-Tam’s counsel advises that she did obtain an indemnity for legal costs from FTPC.[^2] An indemnity suggests that reasonable expectations would contemplate the possibility of an adverse costs award. However, neither FTPC nor Ms. Wong-Tam submitted any information on its scope, its depth, nor the indemnity itself as part of the costs submissions until requested by the court to provide a copy and any underlying security. FTPC’s counsel then advised that there is no executed indemnity agreement. Rather, there is a draft agreement and an oral understanding between FTPC and Ms. Wong-Tam. In addition, there is no underlying security.

[22] The application judge found that FTCP and Ms. Wong-Tam qualified as public interest litigants for the purposes of standing and that they had not acted for their personal benefit but to vindicate an important public interest. While another adjudicator might have decided differently, we are unable to conclude that the application judge made a palpable and overriding error in his public interest determination.

[23] Accordingly, we are prepared to accept the respondents’ argument that they are both public interest litigants. This does not end the matter, however, as such a conclusion does not automatically preclude an adverse costs award: see Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, [2007] 1 S.C.R. 38, at para. 35; Mark M. Orkin, The Law of Costs, loose-leaf, 2nd ed. (Toronto: Thomson Reuters, 1987), at §219.5.2. In our view, the respondents’ status as public interest litigants does not excuse them from all costs consequences in the circumstances of this case, but it is a factor to consider when addressing quantum: Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1, leave to appeal ref’d, [2018] S.C.C.A. No. 255, at paras. 87-88. Indeed, in a given case it may be an important factor.

Quantum of Costs

[24] Turning to the appropriate quantum of costs, we are to consider what is fair and reasonable for the unsuccessful party to pay in the circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). Factors that may be considered are outlined in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and include the importance of the issues and complexity of the proceedings, and the reasonable expectations of the unsuccessful party.

[25] Dealing first with costs of the appeal, the appellant was wholly successful; success was not divided. The issues were of significant importance to the appellant and of some complexity. The costs of the parties on appeal were substantially similar and, as such, the respondents would reasonably expect to pay $150,000 for the appeal as claimed by the appellant.

[26] As for the costs of the application, it is fair to infer that given the quantum of the respondents’ costs on a partial indemnity scale of approximately $400,000 for the underlying application,[^3] the respondents could and should have reasonably expected that the appellant’s partial indemnity costs to respond to the application would be comparable. Furthermore, FTPC was incorporated for the purpose of pursuing the litigation. At an early stage in the application proceedings, the appellant and FTPC entered an agreement for security for costs of $75,000 to be paid by FTPC.

[27] Lastly, the appellant did not appeal the entire judgment, including the standing and statutory trust characterizations.

[28] Having considered these various factors, including the issue of public interest, we are of the view that FTPC should pay $150,000 on account of the appeal and cross-appeal, and $200,000 on account of the application, both inclusive of disbursements and applicable tax.

[29] Ms. Wong-Tam’s role in the litigation can fairly be described as secondary to that of FTPC. However, she should not be relieved of responsibility for costs entirely. She has an unexecuted indemnity and an understanding from FTPC, albeit a company with litigation as its sole purpose. Given her limited involvement, we are restricting her exposure to a modest award, relative to the amount claimed, of $10,000 on account of the appeal and cross-appeal and making no order as to costs with respect to the application.

[30] In our view, these are fair and reasonable awards in all the circumstances.

“S.E. Pepall J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

[^1]: The appellant conceded that it was a statutory trust when it filed its factum on the application in April 2018.

[^2]: Lorraine Tinsley, FTPC’s Chair, stated in her cross-examination of February 4, 2015, on her affidavit sworn April 6, 2013, that she believed FTPC “would cover Ms. Wong-Tam’s costs”.

[^3]: The parties settled the application costs for an amount of $475,000, which exceeded the partial indemnity costs of the respondents.