Earhart v. Bath Institution (Warden), 2017 ONSC 6489

CITATION: Earhart v. Bath Institution (Warden), 2017 ONSC 6489

COURT FILE NO.: CV-17-580648

DATE: 20171102

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DONALD EARHART, Applicant

AND:

BATH INSTITUTION (WARDEN), COLLINS BAY INSTITUTION (WARDEN), CORRECTIONAL SERVICE CANADA, MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and ATTORNEY GENERAL OF CANADA, Respondents

BEFORE: Jane E. Ferguson, J.

COUNSEL: Ian B. Kasper for the Applicant

Ayesha Laldin for the Respondents

HEARD: In-Writing

COSTS ENDORSEMENT

[1] The issue is whether costs should be payable now to the applicant (the successful party on the application) or whether costs should be in the cause?

[2] Costs are inherently in the discretion of the presiding judge. Rule 57.03(1) allows the court to depart from fixing costs and ordering them to be paid in 30 days if "the court is satisfied that a different order would be more just." Costs in the cause have been justified on injunctions on the basis that "interlocutory injunctions are significantly different than other forms of civil orders in that they effectively grant the moving party judgment before the merits of the case are fully adjudicated at trial."

Accreditation Canada International v. Guerra, 2016 ONSC 6184

[3] There is no mandatory rule to award costs in the cause on interlocutory injunctions. This “detracts from the residual discretion of the motions judge in determining what costs order would be just. In making such determination, the judge on a motion for an interlocutory injunction should consider the principles in Rogers Cable that, in the usual case where a trial is a virtual certainty, the award of costs should be reserved to the trial judge.” Intercontinental, Forest Products SA v. Rugo (2004) 1910 AC 24.

[4] The continued discretionary nature of costs, including the lack of a hard and fast rule, has been recognized by the Honourable Mr. Justice Sharpe in his text Injunctions and Specific Performance. He states “however, [the usual rule] is subject to a rule of court that provides that costs on interlocutory proceedings are to be ordered paid within 30 days. In the end, there is no rigid rule.” He further states, “on the other hand, it would be unusual to award costs of an interlocutory injunction motion to the successful plaintiff prior to trial. As there has been no final determination of the rights of the parties, but rather an order to protect the plaintiff’s position pending trial, the preferrable course is to reserve the question of costs to the trial judge.

Injunctions and Specific Performance, loose-leafed, release No. 25 Thomson Reuters 2016.

[5] An order of costs in the cause in interlocutory injunctions allows the court to have the benefit of hindsight and to avoid the possible injustice of awarding costs to a plaintiff for having succeeded in obtaining an order to protect his or her position pending trial when the outcome of the trial/application differs.

[6] Costs are to be in the cause in this case for the following reasons:

a. The injunction has not ended this litigation and a hearing on the merits is a virtual certainty;

b. The issues on the injunction are inextricably linked to the merits of the habeas corpus application;

c. As a result of the injunction the applicant was sent back to segregation – a deprivation of liberty that he is challenging in the habeas corpus application;

d. The application judge should have the benefit of hindsight to determine if the applicant’s motion was justified, given his position against segregation on the main application and to decide on cost consequences accordingly;

e. There is a pending leave to appeal to the Divisional Court which could affect costs if the respondents are successful; and

f. This case involves a public authority that was carrying out its statutory obligations which includes factors on the injunction application, such as accessibility to home community and healthcare.

[7] Given all of the circumstances it is more practical and fair that the application judge conduct the overall costs assessment including the costs of the injunction application.

Jane E. Ferguson, J.

Date: November 2, 2017