SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No.: 55947/15 (St. Catharines)
Date: 20151014
RE: Brett House (Applicant) v. The Corporation of the Town of Lincoln, the Minister of Tourism, Culture and Sport for Ontario and the District School Board of Niagara (Respondents)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Mark Polley and Jeffrey Haylock, for the Applicant
Michael A. Hines and Stephen A. Gleave, for the District School Board of Niagara, Respondent
HEARD: By written submissions dated August 11 to August 25, 2015
E N D O R S E M E N T – C O S T S
[1] The Respondent, the District School Board of Niagara, seeks a cost award against the Applicant, Brent House arising from injunction proceedings and a judicial review application brought by Mr. House. Mr. House argues that as a public interest litigant, no costs should be awarded. The other Respondents did not file costs submissions.
[2] On July 20, 2015, I dismissed Mr. House’s motion to extend an interim injunction I had previously granted on an ex parte basis, and gave oral reasons for that decision. At the same hearing, I heard the School Board’s motion to dismiss Mr. House’s judicial review application based on delay or laches. I did not need to decide the latter motion, based on Mr. House’s position at the hearing that he would not proceed with the judicial review application if the interim injunction was not extended. Costs were left to be determined based on written submissions.
[3] By way of background, the interim injunction restrained the School Board from demolishing a portion of the old school building for Vineland Public School in the Town of Lincoln. That portion of the old school building was previously a one-room school house constructed in 1895. A new consolidated public school for the Town of Lincoln was in the process of being built on the same parcel of land as the old school building.
[4] Mr. House is a former student of Vineland Public School with an interest in the preservation of historic buildings. On July 7, 2015, I granted an ex parte interim injunction in order to permit Mr. House to proceed with a judicial review application with respect to decisions of the Town of Lincoln and the Ontario Minister of Tourism, Culture and Sport not to designate the 1895 school building as a heritage property under the Ontario Heritage Act.[^1] In doing so, I was satisfied Mr. House was justified in bringing an emergency motion given the imminent demolition of the 1895 school building. I was also satisfied that the test for granting interim relief set out in RJR MacDonald Inc. v. Canada (Attorney General)[^2] had been met. In the exercise of discretion under rule 40.03 of the Rules of Civil Procedure,[^3] I did not require an undertaking as to damages from Mr. House, who did not stand to derive any personal gain from the preservation of the 1895 school house and was using his own funds to bring the litigation.
[5] After hearing Mr. House’s extension motion, I decided not to extend the interim injunction. In my oral reasons for that decision, I found that with the benefit of the additional evidence that the Respondents provided, Mr. House had not established one of the three elements of the test for granting interim relief, that is, that the balance of interest favoured granting that relief. In reaching that decision, I took into account competing public interests: (i) providing premises for public school students to attend classes in September; and (ii) preserving a historical building that was likely already beyond saving on any reasonable basis. I also indicated in my reasons that in dismissing Mr. House’s motion, I was not being critical of his actions in seeking the interim injunction, finding that he acted in good faith. In this regard, I noted the apparent urgency of the situation, and found that the information he provided to support the ex parte motion was appropriate, considering the constraints involved when pulling together the necessary material for a motion of this nature.
[6] In its written costs submissions, the School Board seeks a costs award in the amount of $12,500. The School Board provided a Bill of Costs, which indicated actual costs of over $85,000 and partial indemnity costs of over $50,000. The School Board argued that $12,500 was appropriate in light of the factors listed in rule 57.01 of the Rules of Civil Procedure, taking into account Mr. House’s position that he was acting in the public interest in bringing these proceedings.
[7] In its costs submissions, the School Board questioned Mr. House’s status as a public interest litigant, noting that he was a non-resident with an emotional, nostalgic attachment to the building. By contrast, according to the School Board, its publicly elected school trustees were, by statute, charged with advancing the public interest in matters of public education. The School Board also argued that Mr. House’s actions irresponsibly caused the School Board to expend scarce resources on a hopeless cause, to the detriment of local taxpayers. As well, the School Board argued that Mr. House pursued unnecessary vexatious issues with no realistic prospect of success, including an allegation not supported by the evidence that the School Board had accelerated its demolition of the 1895 school house after receiving notice of Mr. House’s intention to pursue legal action to stop the demolition.
[8] As indicated by our Divisional Court in DeLarue v. Kawartha Pine District School Board,[^4] there is a generally accepted principle that individuals or groups that pursue litigation in the public interest and for unselfish reasons are subject to unique costs considerations, and that it is not usual to order costs against an unsuccessful public interest litigant. That decision also indicated that unsuccessful public interest litigants will not always be shielded from a costs award, and that there are no categorical rules about the exercise of the court’s discretion in public interest litigation.
[9] The factors a court should consider when determining whether a party is a public interest litigant has been considered in previous decisions of our court,[^5] applying or adapting the following criteria proposed by the Ontario Law Reform Commission in its Report on Standing:[^6]
(a) The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved;
(b) The litigant has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if the litigant has an interest, it clearly does not justify the proceeding economically;
(c) The issues have not been previously determined by a court in a proceeding against the same defendant;
(d) The defendant has a clearly superior capacity to bear the costs of the proceeding; and
(e) The litigant has not engaged in vexatious, frivolous or abusive conduct.
[10] From previous court decisions, it is apparent that not all of these factors need to be present in order for a party to qualify as a public interest litigant.[^7]
[11] In this case, I am satisfied that Mr. House qualifies as a public interest litigant. As the School Board argued, the exercise by school trustees of their statutory powers reflects an important public interest in matters of public education. However, I also agree with Mr. House that the preservation of historic buildings is a public good and one of the key purposes that the legislature sought to further through the Ontario Heritage Act. While the former interest prevailed over the latter when applying the balance of convenience factor in this case, public policy favours promoting both of these interests, to the extent possible.
[12] In concluding Mr. House qualifies as a public interest litigant, I also considered the fact that he did not stand to derive any personal gain from the preservation of the 1895 school house, as previously noted. After unsuccessfully engaging public officials, he litigated the issue with his own funds, without other financial support.
[13] The School Board argued that rather than expecting local taxpayers to bear the full cost of this litigation, it was reasonable to expect Mr. House to attempt to raise funds from other like-minded persons, a course of action that other individuals and groups have taken in similar circumstances. No doubt, it would have been prudent financially if he had done so, recognizing the possibility that he would not succeed in convincing public officials to preserve the 1895 school house without resorting to litigation. However, in all the circumstances, I do not consider his status as a public interest litigant to have been affected in this case by the fact that he did not attempt to raise money from others to further the bringing of court proceedings, a course of action he pursued to advance a public good recognized by statute in Ontario.
[14] When considering the issue of Mr. House’s status as a public litigant, I also considered the question of whether Mr. House had engaged in any vexatious, frivolous or abusive conduct, one of the factors referred to in previous cases. In this regard, the School Board placed particular reliance on what its counsel characterized as the scandalous theory that the School Board had accelerated the demolition of the old school building to include the original 1895 school house after receiving notice of Mr. House’s intention to pursue legal action to stop the demolition. In the School Board’s submission, given Mr. House’s vigorous persistence in advancing this allegation in the face of clear evidence to the contrary, he could not reasonably expect to be completely shielded from the costs consequences of this litigation.
[15] In my oral reasons refusing to extend the interim injunction, I noted that Mr. House’s counsel asked me to draw the inference that the demolition of the old school building was accelerated upon the direction of the School Board in order to pre-empt legal proceedings once School Board officials became aware that legal action was being pursued. I made a finding of fact that such was not the case. However, I also stated that I could understand Mr. House’s suspicions on this issue, based on the timing of events, including the delivery to the School Board of written notice from Mr. House’s lawyers shortly prior to commencement of demolition of that portion of the old school building.
[16] While I did not find in Mr. House’s favour on this issue, I did not consider it scandalous or vexatious that he advanced this position. Consistent with my previous observations, although Mr. House was ultimately unsuccessful, I consider Mr. House to have acted reasonably throughout the proceedings. Unlike in DeLarue v. Kawartha Pine District School Board and Sydenham District Assn. v. Limestone District School Board,[^8] Mr. House did not pursue a “no holds barred” approach in this case or otherwise conduct himself in a manner that would justify a costs award against him.
[17] In all the circumstances, I see no reason to depart from the usual practice in public interest litigation by ordering costs against Mr. House.
[18] Accordingly, the parties shall bear their own costs.
The Honourable Mr. Justice R.A. Lococo
Released: October 14, 2015
COURT FILE NO.: 55947/15 (St. Catharines)
DATE: 20151014
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Brett House
Applicant
- and -
The Corporation of the Town of Lincoln, the Minister of Tourism, Culture and Sport for Ontario and the District School Board of Niagara
Respondents
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Mark Polley and Jeffrey Haylock, for the Applicant
Michael A. Hines and Stephen A. Gleave, for the District School Board of Niagara, Respondent
ENDORSEMENT – COSTS
Lococo J.
Released: October 14, 2015
[^1]: R.S.O. 1990, c. O.18.
[^2]: 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 at 400.
[^3]: R.R.O., Reg. 194.
[^4]: 2012 ONSC 7372, [2012] O.J. No. 6251 at paras. 4-5.
[^5]: Durham Citizens Lobby for Environmental Awareness and Responsibility Inc. v. Durham (Regional Municipality), 2011 ONSC 7143, [2011] O.J. No. 6343; Brunton v. Fort Erie (Town), 2011 ONSC 235, [2011] O.J. No. 63; Incredible Electronics Inc. v. Canada (Attorney General) (2006), 2006 17939 (ON SC), 80 O.R. (3d) 723 (S.C.).
[^6]: Toronto: Minister of the Attorney General, 1989.
[^7]: Durham Citizens Lobby for Environmental Awareness and Responsibility Inc., supra note 5 at paras. 51-52.
[^8]: 2015 ONSC 594, [2015] O.J. No. 492 (Div. Ct.).