Court File and Parties

Court File No.: 192/13 Date: 2014-09-12 Superior Court of Justice – Ontario In the Divisional Court at Toronto

Re: Mariann Taylor-Baptiste, Applicant And: Ontario Public Service Employees Union, Jeff Dvorak and Human Rights Tribunal of Ontario, Respondents And: Attorney General of Ontario, Ontario Human Rights Commission and Canadian Civil Liberties Association, Intervenors

Before: F.P. Kiteley, D.R. Aston and K.W. Whitaker JJ.

Counsel: Ranjan K. Agarwal and Amanda C. McLachlan for the Applicant Nick Coleman, Jodi Martin, and Michael Fenrick, for the Respondents OPSEU and Dvorak

Heard: In writing

Endorsement As To Costs

[1] In reasons for decision dated May 28, 2014 (2014 ONSC 2169) this Court dismissed the application for judicial review and directed submissions on costs.

Positions Taken by the Parties

[2] Counsel for Taylor-Baptiste takes the position that no costs should be awarded on several grounds including that: the application involved novel issues of general public importance; Charter and human rights litigation should not be deterred by adverse costs awards; and parties to proceedings before the Human Rights Tribunal are not subject to adverse costs awards and the public policy underlying that no-costs regime should be applied in a judicial review of that Tribunal’s decisions.

[3] Counsel for the Applicant does not assert that the Applicant is a public interest litigant. Rather he argues that whether she is a public interest litigant or a private interest litigant, the issue in the judicial review application in which she was a partisan is a matter of significance not only to the parties but the broader community, namely whether section 5(1) of the Human Rights Code is ambiguous, and, if so, how it should be interpreted in light of values enumerated in the Canadian Charter of Rights and Freedoms. As a result, the decision has an impact on the Applicant as well as on the broader community, including unions, employers and non-unionized employees. Counsel noted that the words “with respect to employment” in section 5(1) of the Code had never been subject to an exercise of statutory interpretation and that the application involved a novel point of law.

[4] In their written submissions, counsel for OPSEU and Dvorak ask for costs of $15,000 inclusive of HST and disbursements. Their counsel take the position that: the Applicant is not a public interest litigant; this judicial review application did not involve an element of public interest; and partial indemnity costs should be awarded given the dismissal of the application.

Analysis

[5] As the Tribunal decisions and this Court’s reasons indicate, the events arose in the context of fractious collective bargaining between OPSEU and the Province. As a result of the resolution of the issues between union and management, those parties agreed that certain misconduct during the bargaining period would not attract discipline, including specifically the blog posts of Dvorak and other union employees. Not satisfied with that outcome, the Applicant forged ahead in a quest for personal vindication. The Applicant’s complaint to the Tribunal alleged discrimination against her personally. She sought damages as against the union in the amount of $35,000 for a breach of her Code rights, $10,000 for mental anguish and a variety of special damages. We are not persuaded that this proceeding engaged a public interest issue.

[6] Nor are we persuaded that the outcome will impact prospective circumstances of alleged discrimination. As the Tribunal noted at paragraph 42 of the original decision (quoted at paragraph 41 of this Court’s reasons), the decision was unique to the facts presented. The reasoning did not preclude arguments that blog posts in other contexts could fall under s. 5(1) or that expressions of union opinion could constitute discrimination in other circumstances.

[7] The costs submissions indicate that the total fees on a partial indemnity basis including the full day of the hearing totaled $22,333.50 together with HST of $2,903.35 for a total of $25,236.85. The disbursements including HST totaled $4,180.87 of which almost $3,500 related to photocopies and laser copies. According to the submissions, the actual costs were significantly higher but counsel had removed the significant time spent responding to arguments which were raised by the scope of the Attorney General’s intervention. Counsel took the position that an award of $15,000 inclusive of HST and disbursements would be in the parties reasonable expectations and would reflect a fair and reasonable amount for a one-day judicial review proceeding of this complexity.

[8] Counsel has proposed a substantial discount but we are of the view that it is not sufficient to reflect the fact that there were three intervenors which necessitated additional services, and, as the disbursements indicate, additional costs. No part of the services or disbursements consequential to the intervenors should be paid by the Applicant. Furthermore, but for the intervenors, the matter would have been dealt with in ½ a day not a full day. To reflect these adjustments, we conclude that the Applicant shall pay to the Respondents OPSEU and Dvorak the sum of $7,500.

F.P. Kiteley J.

D.R. Aston J.

K.W. Whitaker J.