Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230606 DOCKET: M54241 (COA-23-CV-0016)

Fairburn A.C.J.O. (Motion Judge)

BETWEEN

Justice Centre for Constitutional Freedoms Non-Party (Appellant)

and

Mariana Costa, Crystal Love, Alexandra Badowich and Angelina Mandekic Applicants (Respondents)

and

Seneca College of Applied Arts and Technology Respondent (Respondent)

Counsel: Jonathan Roth, for the non-party (appellant), Justice Centre for Constitutional Freedoms James Manson, for the applicants (respondents) Kathryn Marshall, for the respondent Sujit Choudhry, for the proposed interveners, the Canadian Civil Liberties Association, Canadian Constitution Foundation & Democracy Watch

Heard: June 1, 2023

Reasons for Decision

Overview

[1] This is a motion for leave to intervene as a friend of the court, pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in an appeal of a costs award made in a motion for an interlocutory injunction.

[2] The proposed intervener is a group of three public interest organizations – Canadian Civil Liberties Association, Canadian Constitution Foundation, and Democracy Watch (“the proposed joint interveners”) – who jointly seek leave to intervene.

[3] Two students enrolled in Seneca brought an application against the school. They claimed that Seneca breached their rights pursuant to ss. 2(a), 7, 8, and 15 Charter of Rights and Freedoms. The breaches were said to arise from Seneca’s policy requiring all students who attend Seneca’s campus to be fully vaccinated for COVID-19. The Justice Centre for Constitutional Freedoms (“JCCF”) represented the students at a motion seeking an interlocutory injunction to prevent Seneca from enforcing its vaccination policy against the applicants. On September 12, 2022, the motions judge dismissed the applicants’ motion for the interlocutory injunction.

[4] The parties to the motion – the students and Seneca – could not agree on costs. The students and Seneca provided written submissions.

[5] On November 24, 2022, based on the written submissions of the students and Seneca, the motions judge ordered approximately $156,000 in costs against the non-party, JCCF. For clarity, the costs were ordered against the JCCF specifically, not the students who were the party on the motion for an injunction.

[6] After reviewing JCCF’s mandate and active and continuous promotion of the case on its website, including fundraising for the litigation, the motions judge concluded that it was appropriate to hold JCCF liable for costs given “it is riding, in this case, the twin horses of advocate and interested party”. The motions judge then proceeded to apply the Rule 57.01(1) factors of the Rules of Civil Procedure to determine the quantum of costs owed by JCCF to Seneca. The motions judge did not address the students’ argument that this litigation was brought in the public interest.

[7] JCCF appeals the non-party costs order against them to this court.

[8] The proposed joint interveners seek leave to intervene in this appeal. The respondent Seneca opposes. The students and the JCCF take no position.

[9] In determining this motion, it is necessary to consider the nature of the case, the issues that arise in the case, and the contribution that the proposed joint interveners can make in resolving the issues before the court, without doing an injustice to the parties: Jones v. Tsige, 2011 ONCA 540, 106 O.R. (3d) 721 (C.A.), at para. 22; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., 74 O.R. (2d) 164 (C.A.), at p. 167.

Nature of the Case and Issues on Appeal

[10] JCCF appeals the non-party costs order, namely on the basis that: (1) the motions judge erred in law by failing to apply the established legal standard for non-party costs; and (2) the motions judge further erred by ordering costs against JCCF in the absence of notice or an opportunity for it to make submissions on its own behalf, contrary to procedural fairness.

[11] While there is generally a stricter onus applied to interventions in private disputes, this court has held that the “more onerous threshold may be softened somewhat where issues of public policy arise”: Tsige, at para. 23; Childs v. Desormeaux, 2003 ONCA 47870, 67 O.R. (3d) 385 (C.A.), at para. 3; Huang v. Fraser Hillary’s Limited, 2018 ONCA 277, at para. 5; 40 Days for Life v. Dietrich, 2023 ONCA 379, at para. 8.

[12] While the nature of this case is a private dispute, the issues raised involve broader public policy considerations, specifically, the appropriate legal standard for awarding non-party costs against non-profit and public interest organizations.

Will the Proposed Joint Interveners Make a Useful Contribution Without Doing an Injustice to the Parties?

[13] The proposed joint interveners seek to make submissions on four issues:

1. A public interest organization does not become a de facto party liable to costs simply because they fundraised.
2. There is nothing wrong with a public interest organization fundraising, such that it would trigger a costs order.
3. Where a public interest organization becomes a de facto claimant, costs must be dealt with under the legal framework for public interest litigation.
4. This court should incorporate elements of the recent decision of the British Columbia Court of Appeal in British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 354, 31 C.C.L.I. (6th) 223, into the existing legal framework for costs in public interest litigation in Ontario.

[14] There is no doubt that the proposed joint interveners are well-recognized organizations who regularly engage in public interest litigation. While the respondent argues that they have no expertise in the discrete subject-area of this appeal, and that their interest is rooted simply in self-preservation, I disagree.

[15] While it may be that the proposed joint interveners are self-motivated in the broadest sense of the term, they have an understandable institutional self-interest, one that arises from the public interest that they each represent. As they put it, their institutional missions, each motivated in the public interest, could be put at risk if they became more widely susceptible to costs orders. They clearly have expertise on the subject-matter upon which they seek to intervene.

[16] I disagree with Seneca that this is a strictly private dispute with no public interest component. The order appealed from brings squarely into focus the question as to whether fundraising by a public interest organization can change that organization’s status when it comes to costs. This raises an issue of public policy that extends beyond the appeal itself.

[17] I also disagree that the issues upon which the proposed joint interveners wish to make submissions are outside of the scope of the appeal, particularly as it relates to fundraising generally and the legal framework for costs in public interest litigation. The motion’s judge expressly relied on fundraising efforts by JCCF to reach his conclusion that JCCF should be liable for costs. The Notice Appeal specifically raises an issue as to whether the motion judge erred by failing “to consider relevant authority cited by the Moving Applicants concerning costs in the context of public interest litigation.”

[18] Seneca also argues that the submissions of the proposed joint interveners will otherwise be duplicative of JCCF’s submissions. I have reviewed those submissions and do not agree. The proposed submissions with respect to the role of fundraising by public interest organizations for non-party costs is not duplicative of JCCF’s submissions on appeal.

[19] While an intervener cannot repeat submissions of a party, there is nothing wrong with an intervener building upon those positions. This will often be the case. The proposed joint interveners have undertaken not to repeat the submissions of the JCCF. If they do, there are remedies available to Seneca and they can pursue those remedies.

[20] This appeal is still a distance off. Seneca has not yet filed its factum and will have an opportunity to respond to the proposed joint interveners’ submissions. I see no prejudice to the parties by allowing this application. The issue is a nuanced one and I accept that it is important to public interest organizations such as the proposed joint interveners.

[21] The motion for leave to intervene is granted on the following terms:

1. The proposed joint interveners are collectively granted leave to intervene as a friend of the court.
2. The proposed joint interveners will not raise new legal issues, or lead new evidence and will make reasonable efforts to avoid duplicating the submissions of the parties.
3. The proposed joint interveners shall file a factum of no more than 10 pages in length by June 20, 2023.
4. Seneca may file a respondent’s factum that is 8 pages longer than permitted by the rules, one that incorporates its response to the intervener, no later than August 3, 2023.
5. The proposed joint interveners may make oral submissions not exceeding 10 minutes at the hearing of the appeal.
6. Seneca may make an additional 10 minutes of oral submissions.
7. No costs shall be awarded in favour of or against the proposed joint interveners.

“Fairburn A.C.J.O.”