McKitty v. Hayani, 2018 ONSC 5573

Court File and Parties

COURT FILE NO.: CV- 17-4125 DATE: 2018 09 20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TAQUISHA DESEREE MCKITTY, BY HER SUBSTITUTED DECISION MAKERS, STANLEY STEWART AND ALYSON SELENA MCKITTY Applicant

AND:

DR. OMAR HAYANI Respondent

BEFORE: L. SHAW, J.

COUNSEL: Hugh Scher for the Applicant Erica Baron and Leah Ostler for the Respondent

HEARD: In Writing

Endorsement on costs

Background

1On September 21, 2017, the Applicant (Ms. McKitty), through her parents as substitute decision makers, commenced an application seeking an interlocutory injunction restraining the Respondent from withdrawing her mechanical ventilation support in the Intensive Care Unit (ICU) of the William Osler Health System’s Brampton Campus. My reasons were released on June 26, 2018, following a hearing conducted over a number of days between September and December 2017. My reasons covered the interlocutory injunction and a number of other issues that arose during the course of the proceedings.

2In my reasons I identified the following five issues:

1. What is the common law definition of death in Ontario?
2. Does Ms. McKitty meet the criteria for a neurologic determination of death?
3. Does the Charter apply to the determination of brain death and if so, is there an infringement on Ms. McKitty’s s. 2(a), 7, or 15 Charter rights?
4. If the Charter does not apply, is the common law definition of death consistent with Charter values?
5. Does the Consent and Capacity Board of Ontario have jurisdiction over this matter?

3With respect to the issues, I concluded the following:

1. The common law definition of death includes brain death.
2. The Applicant met the criteria for a neurologic determination of death.
3. The Charter did not apply to the determination of brain death and the finding did not infringe on the Applicant’s section 2(a), 7, or 15 Charter rights.
4. The common law definition of death is consistent with Charter values.
5. The Consent and Capacity Board of Ontario does not have jurisdiction to deal with this matter.

4On the last day of the hearing, counsel for the Respondent informed the court that regardless of the outcome, her client would not be seeking costs against the Applicant. Following the release of my reasons, the Applicant’s counsel informed me that his client intended to make written submissions for costs. I have now received those submissions.

5The Applicant’s position is that the court ought to exercise its discretion and order the Respondent to pay her costs on the basis that this is a matter of public interest and, although not successful, this case represents a rare and exceptional circumstance justifying an award of partial indemnity costs. The Applicant is seeking costs of $180,000 plus HST and disbursements for a total of $217,000.

6Although the Respondent could claim success, he is not seeking costs from the Applicant. His position is that while this matter concerned some matters of public interest, the appropriate cost order is that the parties should bear their own costs.

7Accordingly, the only issue to be resolved is whether or not the Applicant should be awarded costs payable by the Respondent, and if so, the quantum of costs.

Analysis

8This is an unusual situation. The Applicant, who was not successful, is seeking costs against the Respondent. I use the terms “successful” and “unsuccessful” with some qualification; in this tragic situation a decision that deals with the determination of death does not comport well with this those terms. Nonetheless, as a result of my decision, I found that the Applicant was brain dead and that mechanical ventilation support for her was to be removed and that the Application was dismissed.

9There is no dispute that the general rule is that costs are normally ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale.

10Section 131 of the Courts of Justice Act, R.S.O 1990, c. C.43 provides the authority to order costs. It states as follows:

Costs

131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

11Based on this section, it is clear that the court has a wide discretion with respect to awarding costs.

12Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out a number of factors the court can consider in exercising its discretion. Rule 57.01 states as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

Costs Against Successful Party

(2) The fact that a party is successful in a proceeding or a step in a proceeding does not prevent the court from awarding costs against the party in a proper case.

Authority of Court

(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,

(a) to award or refuse costs in respect of a particular issue or part of a proceeding;

(b) to award a percentage of assessed costs or award assessed costs up to or from a particular stage of a proceeding;

(c) to award all or part of the costs on a substantial indemnity basis;

(d) to award costs in an amount that represents full indemnity; or

(e) to award costs to a party acting in person.

13If I was only to consider the factors set out in Rule 57.01, and the general rule that costs are paid to the successful party, I would order the Applicant to pay the Respondent his costs of this Application. The issues were complex and of importance.

14The Respondent submits that the court should consider the Applicant’s conduct, which he asserts caused significant delay in the proceedings by tendering inadmissible evidence, bringing unreasonable motions, and conducting lengthy cross-examinations.

15I reject that submission. Given the issues that were before the court and the relatively short time-lines for preparing and filing extensive written briefs, I commended counsel more than once for their presentation of the evidence and their submissions. I do not consider the conduct of the Applicant to be a factor in determining costs.

16The general rule that the unsuccessful party should pay costs to the successful party, however, need not be followed in a matter that involves public interest litigation. In such circumstances, there can be unique costs consequences. The starting point of the analysis is whether or not the issues qualify as public interest litigation as opposed to private interest litigation.

17In Incredible Electronics Inc. v. Canada (Attorney General), [2006] 80 O.R. (3d) 723 (Sup. Ct.), Perell J. at para 59 defined public interest litigation as the resolution of a legal question of importance to the public. He defined private interest litigation as litigation that involves the resolution of a legal question of importance mainly only to the parties.

18When this action was originally commenced the issues were very much of a private nature, as the only issue was whether Ms. McKitty met the criteria for neurologic death under the Canadian Medical Association Journal (“CMAJ”) Guidelines. The original Application was amended, on consent, on November 4, 2017, to expand the relief sought to include a consideration of potential breaches of the Applicant’s Charter rights and whether or not the Consent and Capacity Board of Ontario had jurisdiction to deal with these types of disputes. The Notice of Constitutional question was not served until November 8, 2017, a number of weeks after the commencement of the original Application.

19While the Respondent concedes that some of the issues involve matters of public interest, his position is that the bulk of the evidence heard was with respect to Ms. McKitty’s medical condition, which is a matter involving strictly private interests.

20While I agree that the issue of whether or not the Applicant was brain dead and what impact her movements had on that determination was personal to her, a significant portion of my reasons dealt with issues of much broader importance than those simply involving Ms. McKitty. In addition to issues involving the Charter this was the first decision in Ontario to consider the common law definition of death. There is no legislative definition. Given the uncertainty in the law, I heard submissions from the Respondent, in particular, that clarity was required for the benefit of health care providers, patients, and families in Ontario.

21Accordingly, while the genesis of the litigation may well have been private in nature, it expanded to include issues of public importance that superseded the predominantly private nature of the initial application.

22In my view, the essence of this case involved public interests. The Applicant did not inject or introduce a novel point as pretext to avoid paying costs were she unsuccessful in the Application.

23Having found that this was a matter of public interest litigation, the next issue is whether different cost principles ought to apply.

24The parties submitted a number of cases dealing with costs awarded in matters involving public interest litigation including British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2; and Carter v. Canada (Attorney General), 2015 SCC 5.

25In Carter, commencing at para. 136, the Supreme Court of Canada held as follows:

136 The appellants argue that special costs, while exceptional, are appropriate in a case such as this, where the litigation raises a constitutional issue of high public interest, is beyond the plaintiffs' means, and was not conducted in an abusive or vexatious manner. Without such awards, they argue, plaintiffs will not be able to bring vital issues of importance to all Canadians before the courts, to the detriment of justice and other affected Canadians.

137 Against this, we must weigh the caution that "[c]ourts should not seek on their own to bring an alternative and extensive legal aid system into being": Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] l S.C.R. 38, at para. 44. With this concern in mind, we are of the view that Adams sets the threshold for an award of special costs too low. This Court has previously emphasized that special costs are only available in "exceptional" circumstances: Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, at para. 48. The test set out in Adams would permit an award of special costs in cases that do not fit that description. Almost all constitutional litigation concerns "matters of public importance". Further, the criterion that asks whether the unsuccessful party has a superior capacity to bear the cost of the proceedings will always favour an award against the government. Without more, special costs awards may become routine in public interest litigation.

138 Some reference to this Court's jurisprudence on advance costs may be helpful in refining the criteria for special costs on a full indemnity basis. This Court set the test for an award of advance costs in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371. LeBel J. identified three criteria necessary to justify that departure from the usual rule of costs:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases. [para 40]

139 The Court elaborated on this test in Little Sisters, emphasizing that issues of public importance will not in themselves “automatically entitle a litigant to preferential treatment with respect to costs” (para. 35). The standard is a high one: only “rare and exceptional” cases will warrant such treatment (para. 38).

140 In our view, with appropriate modifications, this test serves as a useful guide to the exercise of a judge’s discretion on a motion for special costs in a case involving public interest litigants. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not previously been resolved or that they transcend the individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. In those rear cases, it will be contrary to the interests of justice to ask the individual litigants (or, more likely, pro bono counsel) to bear the majority of the financial burden associated with pursuing the claim.

26In Carter, the appellants successfully challenged the prohibition on assisted suicide. The Court found that exceptional circumstances warranted an award of special costs to the appellants. The Court made it clear, however, that awards of special costs should not be made in all matters involving public interest litigation, only in those that are truly exceptional. Again, the issues must have a “significant and widespread societal impact.”

27I am not persuaded that this matter meets the high standard set by the court in Carter. In many respects, my reasons did not depart from the process that has been followed for many years in Ontario in making determinations of brain death. While the issue of whether or not the Charter applied to someone declared brain dead had not been previously considered by the court, that in and of itself is not the basis for awarding special costs.

28If I am incorrect and there are exceptional circumstances warranting an award of special costs, the next issue is whether costs can be awarded to an unsuccessful litigant. That question was answered by Belobaba J. in Thompson and Empowerment Council v. Ontario, 2013 ONSC 6357. In that case, the applicant was unsuccessful in challenging certain provisions of the Mental Health Act, R.S.O. 1990, c. M. 7. The court found that costs can be awarded to an unsuccessful litigant in rare and exceptional cases.

29At para. 13 the court found that awarding costs to an unsuccessful applicant, even in cases where there are important public interest dimensions, is “highly unusual” and only permitted in “in very rare cases”. Accordingly, there is authority for the proposition that an unsuccessful party can be awarded costs where there are public interest dimensions.

30I was not, however, provided with any authority for costs being awarded to an unsuccessful litigant where the respondent is a named individual and not the government or a public authority. In my reasons, I found that the Charter did not apply to the Respondent as he was not acting as an agent of the government or performing an act in furtherance of a statutory scheme or government program when he declared Ms. McKitty brain dead. I found that he was performing his duties as a physician when he made the diagnosis.

31This is an unusual situation where the issues involve matters of public interest, but the parties directly involved with the litigation are private citizens. All authorities submitted by the parties support an award of special costs for matters of public interest involving a government or public authority.

32For these reasons, there is no basis to shift the burden of costs to the successful private litigant. Accordingly, the Applicant’s request for costs is denied. The parties shall each bear their own costs.

L. Shaw, J.