Court File and Parties
COURT FILE NO.: 258/06 DATE: 20070430
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CHAPNIK AND KEALEY JJ.
B E T W E E N:
WEYERHAEUSER COMPANY LIMITED, carrying on business as TRUS JOIST Applicant
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ONTARIO HUMAN RIGHTS COMMISSION Respondent
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ALAN CHORNYJ Complainant (Respondent)
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ONTARIO HUMAN RIGHTS TRIBUNAL Respondent
Counsel: Andrew Roman, for the Applicant Brian Smith, for the Respondent, the Ontario Human Rights Commission James Schneider, for the Respondent, the Ontario Human Rights Tribunal
ENDORSEMENT ON COSTS
CUNNINGHAM A.C.J.S.C.:
[1] On October 13, 2006, this court allowed the application for judicial review brought by Weyerhaeuser Company Ltd. (c.o.b. Trus Joist) (“Weyerhaeuser”) and issued an order of prohibition preventing the Ontario Human Rights Tribunal (the “Tribunal”) from hearing the complaint of Mr. Alan Chornyj (“Chornyj”). Written reasons for judgment followed on February 21, 2007 and are now reported as Weyerhaeuser Co. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission), [2007] O.J. No. 640 (Div. Ct.).
[2] In those reasons the parties were invited to make submissions to the court on costs. All parties have done so.
[3] Weyerhaeuser has submitted two bills of costs, one for the application for judicial review and one for the human rights proceedings below. In the judicial review proceeding, Weyerhaeuser seeks substantial indemnity costs in the amount of $57,750.90 against the Ontario Human Rights Commission (the “Commission”) and the Tribunal, jointly and severally. With respect to the human rights proceedings, Weyerhaeuser seeks substantial indemnity costs in the amount of $112,254.26 against the Commission alone.
[4] For the reasons that follow, the Commission is ordered to pay to Weyerhaeuser its costs for the judicial review proceeding, to be fixed at $20,563.57. Weyerhaeuser’s request that the Tribunal be held jointly and severally liable for costs in the judicial review application is dismissed. This court does not have jurisdiction to award costs in the human rights proceedings, therefore Weyerhaeuser’s request that the Commission pay its costs of the human rights proceedings is dismissed. Finally, the Commission is ordered to pay Weyerhaeuser’s costs associated with its costs submissions, to be fixed at $1,500.00.
Costs of the human rights proceedings
[5] Weyerhaeuser submits that this court has jurisdiction to award costs for the human rights proceedings pursuant to s. 42 (3) of the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”).
[6] The relevant parts of s. 42 of the Code reads as follows:
Appeal from decision of Tribunal
- (1) Any party to a proceeding before the Tribunal may appeal from a decision or order of the Tribunal to the Divisional Court in accordance with the rules of court.
Powers of court
(3) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the Tribunal or direct the Tribunal to make any decision or order that the Tribunal is authorized to make under this Act and the court may substitute its opinion for that of the Tribunal.
[7] Weyerhaeuser submits that the word “appeal” in s. 42 (3) is broad enough to include, in these particular circumstances, an application for judicial review. Weyerhaeuser says that the broad wording of s. 42 (3) makes it “clear that the Legislature intended [the] Court to have the broadest possible power to change any decision or order of the Tribunal” (emphasis added). Weyerhaeuser also says that s. 42 (3) “grants this Court jurisdiction to make any order that the Tribunal is authorized to make” (emphasis in original). Since the Tribunal is empowered to award costs against the Commission in certain circumstances under s. 41 (4) of the Code, Weyerhaeuser says that s. 42 (3) gives this court the same power.
[8] Weyerhaeuser cites no authority to support these propositions.
[9] In my view, s. 42 (3) is not applicable. According to this court’s decision in Roosma v. Ford Motor Co. of Canada (1988), 1988 5633 (ON SCDC), 53 D.L.R. (4th) 90 at 98 (Div. Ct.) [Roosma], s. 42 (3) sets out the powers of the court on an appeal from a “final” decision of the Tribunal. The Court held that a decision is “final” only after the Tribunal holds a hearing and comes to a decision on the merits. In this case, the Tribunal did not come to a decision on the merits of Chornyj’s claim. Rather, it made an interim decision regarding its jurisdiction to hear Chornyj’s claim.
[10] The court in Roosma, supra at 98-9, held that an application for judicial review of an interim decision by the Tribunal is available to cure a fatal jurisdictional flaw. But the court was equally clear that such an application is not an “appeal” for the purposes of s. 42 (3):
Notwithstanding their reluctance to intervene in the proceedings of tribunals prior to their completion courts will do so in order to avoid wasting time and money. Thus, if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it. That is so even where an appeal is provided. The general rule that the court will not intervene on judicial review where an appeal is provided is inapplicable in such a case because it assumes the proceedings have been completed. … While a judicial review application might take as long to be heard in this court as an appeal, the great difference is that a judicial review application does not automatically bring the tribunal's proceedings to a standstill. The fact that courts will intervene on judicial review where proceedings before a tribunal appear at the outset to be jurisdictionally defective does not permit a court to invent an appeal procedure for interlocutory rulings where none exists. (emphasis added)
[11] I agree with the submissions of the Commission that this court does not have jurisdiction to award costs in the human rights proceedings. Weyerhaeuser has not cited any other Code provision that grants this court the jurisdiction to award costs in proceedings before the Commission and the Tribunal.
[12] Nor is jurisdiction found in the Courts of Justice Act, R.S.O. 1990, c. 43 (the “CJA”). In Poulton v. Ontario (Racing Commission), [1999] O.J. No. 3152 at paras. 10-12, 19-20 (C.A.), the Court of Appeal held that the courts do not have inherent jurisdiction to award costs but have jurisdiction under s. 131 of the CJA, which confers on the courts the discretion to award costs in a “proceeding”. Relying on rule 1.03 of the Rules of Civil Procedure, which defines a “proceeding” to mean “an action or application”, the Court of Appeal held at para. 19 that “a hearing before a tribunal is not a proceeding within the meaning of s. 131(1) of the Courts of Justice Act.”
[13] Consequently, Weyerhaeuser’s request that the Commission pay its costs in the human rights proceedings is dismissed.
Costs of the application for judicial review
[14] Weyerhaeuser submits that it should be awarded substantial indemnity costs for the judicial review application in the amount of $57,750.09. The Commission counters that substantial indemnity costs are not justified in the circumstances, and that the costs claimed are excessive even on the partial indemnity scale. The Commission submits that an appropriate costs award would be $7,500.00.
[15] The factors to be considered in determining an appropriate costs award are set out in rule 57.01 (1). I agree with Weyerhaeuser that the judicial review proceeding involved somewhat complex issues (I use the word “somewhat” purposefully and will address this issue in greater detail below). I also agree that the issues addressed were of importance. Indeed, this is the first time this court has had to address the Tribunal’s jurisdiction to assess whether a pre-employment drug testing policy discriminates against a recreational marijuana user. Weyerhaeuser was also entirely successful in its claim that the Tribunal did not have jurisdiction. These considerations support Weyerhaeuser’s claim for costs.
[16] Yet I cannot accept Weyerhaeuser’s assertion that the Commission and Tribunal acted in a way to unnecessarily lengthen the duration of the proceedings. This was a one-day judicial review application that was heard on an expedited basis with consent of all parties. Weyerhaeuser’s submissions tend to focus on the alleged conduct of the Commission and Tribunal during the human rights proceedings. As described above, this court does not have jurisdiction to award costs in the human rights proceedings. It follows that the conduct of the parties during the human rights proceedings is not a relevant consideration in determining an appropriate costs award in the judicial review application. To conclude otherwise would allow Weyerhaeuser to indirectly obtain costs from this court for the human rights proceedings contrary to the intention of the Legislature as expressed in the Code and CJA.
[17] In addition, while the issues were somewhat complex and novel, I agree with the Commission’s submissions that the hours spent were nonetheless higher than one would reasonably expect.
[18] The Commission pointed out that the Tribunal’s interim decision was only 13 double-spaced pages and should not have taken long to review. It noted that Weyerhaeuser’s Notice of Application for Judicial Review was less than six pages in length, and the accompanying affidavit contained only nine paragraphs and served to introduce six documents that had previously been filed with the Tribunal. The Commission said that securing an expedited hearing could not have taken very long since it and the Tribunal promptly consented. Also, Weyerhaeuser’s factum was only 13 pages long and reproduced many paragraphs from the factum filed on the motion before the Tribunal. For these activities, Weyerhaeuser claims 73.37 hours spent, which the Commission submits is excessive in these circumstances. Finally, the Commission submits that having three lawyers spend 32.75 hours preparing for a hearing after having already spent 74 hours preparing the materials is excessive.
[19] Given that Weyerhaeuser had the benefit of reviewing the Commission’s costs submissions before filing its own costs submissions, and chose not to directly challenge these assertions, I am persuaded that the hours claimed are excessive.
[20] That being said, the Commission’s proposed cost award of $7,500.00 is not fair and reasonable and does not reflect the fact that the issues raised in the application for judicial review were somewhat complex, novel and important. Nor does it reflect the fact that Weyerhaeuser was entirely successful in its application.
[21] In light of the above analysis, I conclude it is fair and reasonable to award Weyerhaeuser its partial indemnity costs for half of the claimed preparation time for the hearing ($14,993.39), all of its attendance time at the hearing ($4,025.00), and all of its disbursements ($1,545.18). Costs for the judicial review application are therefore fixed at $20,563.57.
[22] This is not a case where substantial indemnity costs are warranted. Such costs are awarded rarely and only where there has been “reprehensible, scandalous or outrageous conduct”: See Young v. Young, [1993] 4 S.C.R. at para. 251; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 at para. 76 (C.A.). None of the parties conducted themselves improperly in this case.
[23] Finally, I agree with the Tribunal’s submissions that it should not be held jointly and severally liable for costs in this case. Costs are generally not awarded against an administrative tribunal, even where that tribunal has lost jurisdiction, absent misconduct or a lack of procedural fairness: See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto, On.: Canvasback, 2003) at para. 5:2560 [Brown & Evans]; St. Peters Estates Ltd. v. Prince Edward Island (Land Use Commission) (1991), 1991 2745 (PE SCTD), 93 Nfld. & P.E.I.R. 45 at para 14 (P.E.I.S.C. (T.D.)). As already mentioned, I have found no misconduct on the part of the Tribunal. Nor did the Tribunal deny procedural fairness to Weyerhaeuser.
[24] Costs have been awarded against an administrative tribunal if it has taken an adversarial position on the merits (Brown & Evans, supra). Weyerhaeuser submits that the Tribunal did take an adversarial position on the merits by asserting that the application for judicial review was premature. I disagree. Taking a position on a discretionary bar to judicial review, as the Tribunal did in this case by asserting that Weyerhaeuser’s application was premature, is not equivalent to taking an adversarial position on the merits of the application: See Brown & Evans, supra at para. 3:1100. In this case the Tribunal took no position on whether it had the jurisdiction to hear Mr. Chornyj’s human rights complaint, and limited its submissions to prematurity and standard of review.
Disposition
[25] The Commission is ordered to pay Weyerhaeuser’s costs of the application for judicial review, on a partial indemnity basis, fixed at $20,563.57. The Commission is also ordered to pay Weyerhaeuser’s costs of its costs submissions, on a partial indemnity basis, fixed at $1,500.00.
[26] Weyerhaeuser’s request that the Tribunal be held jointly and severally liable for costs in the application for judicial review is dismissed. Since this court does not have jurisdiction to award costs in the human rights proceedings, Weyerhaeuser’s request that the Commission pay its costs of the human rights proceedings is dismissed. This issue is remitted to the Tribunal to be decided in accordance with s. 41 (4) of the Code.
CUNNINGHAM A.C.J.S.C.
CHAPNIK J.
KEALEY J.
Date of Release: April __, 2007
COURT FILE NO.: 258/06 DATE: 20070430
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C., CHAPNIK AND KEALEY JJ.
B E T W E E N:
WEYERHAEUSER COMPANY LIMITED, carrying on business as TRUS JOIST Applicant
- and -
ONTARIO HUMAN RIGHTS COMMISSION Respondent
- and –
ALAN CHORNYJ Complainant (Respondent)
- and -
ONTARIO HUMAN RIGHTS TRIBUNAL Respondent
ENDORSEMENT ON COSTS