COURT FILE NO.: 04-DV-990 (formerly No. 04-CV-026589)
AND COURT FILE NO.: 04-DV-001038 (formerly No. 26631)
Ottawa
DATE: 2005-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Gravely, Matlow, Heeney JJ.
B E T W E E N:
York Advertising Ltd. and Robin Murphy Applicants
- and -
Ontario Human Rights Commission, Human Rights Tribunal of Ontario, Jane Doe, Richland Marketing Inc. o/a Richland Technical Services Respondents
A N D B E T W E E N:
Ontario Human Rights Commission Applicant
- and –
Human Rights Tribunal of Ontario, Jane Doe, Hetherington and Richland Marketing Inc. o/a Richland Technical Services Respondents
Counsel: Stephen Bird for the Applicants Hart Schwartz for the OHRC James C. Morton for the HRTO Jane Doe in person
HEARD: February 17, 2005
ENDORSEMENT RE COSTS
MATLOW J.
[1] The applicants are entitled to recover costs with respect to all of the proceedings in this Court from the Tribunal only, fixed with reference to the partial indemnity scale, at $20,000 in total, payable within 30 days. We make no other costs award.
[2] We recognize that it is only in very rare circumstances that this Court should award costs against a statutory tribunal. It is not sufficient, to justify making such an award, that the tribunal be found only to have acted in error or beyond its jurisdiction. Rather, there must be some unusual quality about the conduct of the tribunal that requires us to invoke our jurisdiction to make such an award in order to achieve a result that is just.
[3] In our earlier reasons for our dispositions of these applications on their merits, we described in detail what we held to be the errors and excesses of jurisdiction of the Tribunal which required us to intervene. As well, we described the findings made by the Tribunal of violations of the Code by the applicants and our view that those findings were improperly made in the face of the settlement that the applicants had made with the complainant and the Commission which entitled them to immunity from such findings. We also noted how the Tribunal’s actions threatened the viability of the settlement process fostered by the Code.
[4] At the hearing before us, the Tribunal, through its counsel, sought to persuade us that the Tribunal was entitled to do what it did in spite of the unusual spectacle of the Commission, the other key player in the human rights enforcement process in Ontario, taking an opposite and critical view in its support of the applicants. The Tribunal was fully engaged in the adversarial process, and was wholly unsuccessful on each issue argued. It is our view, there is no compelling reason why the Tribunal should not bear the costs consequences normally borne by unsuccessful litigants.
[5] Were it not for the Tribunal’s adversarial stance at the hearing before us, the hearing would undoubtedly have been shorter and simpler than it was and the applicants would not have been put to as much expenditure as they were in order to pursue the relief to which they were held to be entitled.
[6] Accordingly, for all of these reasons, we are persuaded that this is a proper case in which we should exercise our discretion to award costs against the Tribunal and require it to provide some indemnification to the applicants for the legal costs they have incurred.
Matlow J.
Gravely J.
Heeney J.
Released: November 10th, 2005
COURT FILE NO.: 04-DV-990 (formerly No. 04-CV-026589)
AND COURT FILE NO.: 04-DV-001038 (formerly No. 26631)
Ottawa
DATE: 2005-11-10
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justices Gravely, Matlow, Heeney
B E T W E E N:
YORK ADVERTISING LTD., et al. Applicants
- and -
ONTARIO HUMAN RIGHTS COMMISSION, et al Respondents
A N D B E T W E E N:
ONTARIO HUMAN RIGHTS COMMISSION Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO, et al Respondents
ENDORSEMENT RE COSTS
MATLOW J.
Released: November 10th, 2005