Court File and Parties

COURT FILE NO.: 179/2000 DATE: 2002-12-11

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

THEN, MacKENZIE, CAMERON JJ.

B E T W E E N:

ONTARIO HUMAN RIGHTS COMMISSION Applicant (Respondent in Appeal)

• and -

RAY BRILLINGER and THE CANADIAN LESBIAN AND GAY ARCHIVES Applicants (Respondents in Appeal)

• and -

SCOTT BROCKIE and IMAGING EXCELLENCE INC. Respondents (Appellants in Appeal)

• and -

THE CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN RELIGIOUS FREEDOM ALLIANCE and THE EQUALITY COALITION Intervenors

COSTS ORDER

FACTS

[1] In April, 1996, the respondent Mr. Brillinger sought printing services from the appellant Imaging Excellence Inc. ("Imaging"). He did so on behalf of the respondent The Lesbian and Gay Archives ("Archives"), for which he sought to have letterhead and business cards printed. He was served at Imaging by its directing mind, the appellant Mr. Brockie.

[2] The appellants refused to provide the requested printing services on the basis that they did not wish to serve an organization named The Lesbian and Gay Archives. Mr. Brockie said that he was a born again Christian and that to provide the requested services would conflict with his religious beliefs.

[3] Mr. Brillinger complained to the Ontario Human Rights Commission (the "Commission") that he had been refused services on the grounds that he was a gay man. Based on advice he says was provided at the Commission and which the Commission denies, he initiated a complaint in his own name and not in the name of Archives.

[4] The matter came before Heather MacNaughton, sitting as a Board of the Commission (the "Board").

[5] During the Board proceeding, the Commission sought to add Archives as a proper complainant to the complaint. The Board found that it had no jurisdiction to add a complainant to the proceeding, but that it could find that Archives was in fact a complainant, which it so did in its decision dated February 19, 1999.

[6] The Board subsequently made separate rulings on liability and remedy. On the issue of liability, the Board found, in its decision dated September 29, 1999, that the appellants had discriminated against Mr. Brillinger and Archives.

[7] In its decision dated February 24, 2000, in respect of remedy, the Board found that the appellants should pay damages of $5,000 and should be ordered to provide services usually provided to members of the public to lesbians and gay men and the organizations that exist to serve them.

[8] The appellants appealed all points to the Divisional Court.

DIVISIONAL COURT DECISION

[9] The hearing extended over 3 days and involved important issues under the Ontario Human Rights Code (the "Code") and fundamental freedoms and rights in the Canadian Charter of Rights and Freedoms (the "Charter").

[10] The appellants took the position that Archives was not an original complainant to the complaint, and that the Board lacked the jurisdiction to add a complainant. This Court accepted this position in a preliminary ruling delivered December 5, 2001, the text of which was incorporated into its final decision rendered June 17, 2002. As a result the complaint of Archives was dismissed.

[11] However, during the course of the Court's decision concerning the balance of the issues on the appeal, the Court made findings bearing upon the substantive position of the parties and Archives. In particular, the Court found:

(a) Section 1 of the Code extends to corporations, which are included in the definition of "person" (paras. 24 and 26);

(b) The refusal was discrimination on the basis of sexual orientation, against Mr. Brillinger directly, and by reason of his association with Archives (pursuant to s.12 of the Code) (paras. 27-28);

(c) The appellants' proposed distinction between "sexual orientation" and the political act of promoting the causes of lesbians and gay men is specious and defies rational justification (para. 29). Promoting an understanding and respect for lesbians and gay men should not be regarded as separate from the characteristic of sexual orientation (para. 31);

(d) The Court has no power to read into the Code a defence of bona fide and reasonable justification because the appellants led no evidence to provide a factual matrix necessary to challenge the Code (para. 33-35);

(e) The Board's order infringes Mr. Brockie's s.2(a) rights to freedom of religion (a point conceded by Mr. Brillinger and the Commission) (para. 40);

(f) The objective of the Board's order is both pressing and substantial under the Oakes test (para. 47);

(g) The Board's order was directed to the activity which gave rise to the offensive conduct. In this regard, the Board's order was rationally connected to the objective of removing discrimination (paras. 48 and 49);

(h) Providing a commercial service to the public is at the periphery of activities protected by freedom of religion;

(i) The appellants achieved substantial success in limiting the future scope of the Board's order in that the Board's order was found to be unduly intrusive and that it should be qualified so as not to require the appellants to provide services which could strike at the core elements of Mr. Brockie's religious belief or conscience (paras. 50-52, 56-58).

[12] The net effect of these findings is an implicit conclusion that Archives was discriminated against by the appellants by reason of sexual orientation, and that if Archives had been included as a party complainant from the outset, the appellants would have been liable for discriminating against it.

[13] The motion to acknowledge Archives as a complainant before the Board was brought by the Commission, with the consent and support of Archives.

[14] Although the appellants succeeded on this ground of the appeal, it is a technical success that does not undo the fact that they did, in fact, discriminate against Archives.

[15] Given the results on the other issues on the appeal, no costs consequences ought to flow in respect of the Court's decision concerning the exclusion of Archives as a complainant.

[16] The appellants have been put to only modest expense as a result of the participation of Archives, aside from arguing the very discreet point of statutory interpretation respecting the power of the Board to add a complainant to the complaint.

COSTS SUBMISSIONS

[17] Mr. Brillinger and the Commission were successful in maintaining the order as it applied to Mr. Brillinger's circumstances. Archives, represented by the same counsel as Mr. Brillinger, while not technically a party, obtained the satisfaction of obiter dicta that it too had suffered discrimination. Mr. Brockie and Imaging had a substantial degree of success in excluding Archives as a party and limiting the scope of the application of the Board's order.

[18] Counsel for Mr. Brillinger and Archives indicate they were acting on a pro bono basis. They make a claim for costs of this appeal on a generous partial indemnity scale because of the importance of the issues at stake, for fees of $50,000 and disbursements of $732.85. They argue that while costs are normally awarded on the basis of indemnification for fees and disbursements actually incurred, they point to the decision of Epstein, J. in Rogers v. Sudbury (Administrator of Ontario Works) (2001), 57 O.R. (3d) 467 allowing costs as a matter of public policy for pro bono counsel who provide an access to justice in Charter litigation which would otherwise be denied to ordinary citizens of modest or only moderate means. The Court of Appeal permitted fair and reasonable contingent fees in tort litigation by individuals in McIntyre Estate v. Ontario, [2002] O.J. No. 3417 and Raphael Partners v. Lam, [2002] O.J. No. 3605.

[19] We concur in the philosophy behind these cases. However the funding for the pro bono work must come from somewhere, possibly from charity which can obtain funds free of taxation. This would create an uneven playing field in a contest with a party which cannot deduct its legal costs as business expenses or a charitable donation. We are quick to assert that there is no evidence of the source of Mr. Brillinger's funding or the tax impact on the appellants' legal costs.

[20] The appellants argue that notwithstanding the divided success in the appeal, theirs was so substantial as to justify costs, if not on a substantial indemnity basis, at least on a partial indemnity basis. Had they not appealed they would have been perpetually subject to an unduly broad order. Counsel for the appellants rendered solicitor-client accounts totalling $104,493.05. They have not submitted a bill of costs in accordance with Tariff A and the Costs Grid.

[21] The Commission seeks costs in respect of its legal fees of $33,977 for responding to the appeal. Inasmuch as it estimates 2/3 of the Court's time during the appeal was devoted to issues on which the Commission was successful and 1/3 of the Court's time on which it was unsuccessful, it is requesting its net costs of approximately $10,000 from the appellants, representing 1/3 of its legal fees. The Commission submitted no bill of costs.

[22] No costs are sought against the intervenors and the intervenors seek no costs.

CONCLUSION

[23] Mr. Brockie and his corporation achieved material success on the appeal by modification of the scope of the order. If their total solicitor-client costs were in the order of $100,000, party-party or partial indemnity would be in the range of $50,000. In view of the fact they were only partially successful we would fix costs payable to them by the Commission, Archives and Mr. Brillinger at $25,000 payable within 30 days.

[24] In view of the results we make no order with respect to the Commission's costs.

Then, J.

MacKenzie, J.

Cameron, J.

Released: