Court File and Parties

COURT FILE NO.: CV-17-6796 DATE: 2018/12/21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E N:

REVEREND BROTHER MICHEL D. ETHIER Acting in person Plaintiff

• and -

ATTORNEY GENERAL OF CANADA Jennifer Bond, for the Defendant Defendant

HEARD: In writing

ELLIES J.

REASONS FOR DECISION ON COSTS

[1] In a decision released on October 26, 2018 (2018 ONSC 6427, the “motion decision”), I dismissed the plaintiff’s motion for an interim injunction directing the defendant not to prosecute the plaintiff for possessing cannabis. I ordered that the parties could make written submissions with respect to costs, if they were unable to agree on the issue. I have now received and reviewed those submissions.

[2] The defendant seeks costs in the amount of $3,000, inclusive of HST and disbursements. The plaintiff resists paying any costs on the basis that he is a “pauper”. For the following reasons, I grant the defendant’s request.

[3] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives the court discretion to determine by whom and to what extent costs shall be paid incidental to a proceeding or a step in a proceeding. Rule 57.03(1) requires the court to fix the costs of a motion and order that they be paid within 30 days, unless the court is satisfied that a different order would be more just.

[4] Rule 57.01(1) lists a number of factors to be considered by a court in exercising its discretion under s. 131 of the Courts of Justice Act. In my view, those factors weigh in favour of ordering the plaintiff to pay the defendant’s costs.

[5] I start with the principle of indemnity. The successful party is ordinarily entitled to its costs. The Crown is no exception: Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 28(1).

[6] An unsuccessful party’s ability to pay is not one of the factors listed in r. 57.01(1). Nonetheless, the principle of indemnity must be balanced against the fundamental principle of access to justice: Anderson v. St. Jude, 2008 O.A.C. 10 (Div. Ct.). The plaintiff raises the issue of access to justice by quoting from the Magna Carta (1215). However, while poverty should not restrict a person’s access to justice, it also should not act as a licence to litigate unmeritorious motions.

[7] The plaintiff’s motion was originally based on the premise that he could not legally possess the sacrament of his religion because of the prohibition on possession of cannabis contained in the Controlled Drugs and Substances Act, S.C. 1996, c. 19. However, at the time the plaintiff’s motion was argued on October 1, passage of the new Cannabis Act, S.C. 2018, c. 16 was only about two weeks away. The plaintiff made it quite clear during argument that he was very familiar with the pending legislation. He was well aware at the time that he would soon be able to legally possess more cannabis than he submitted he would like to consume in a day (motion decision, at para. 31).

[8] Rather than abandoning his motion, however, the plaintiff sought to support it by advancing speculative arguments such as, for example, that licit cannabis may contain harmful substances or may be more expensive than illicit cannabis (motion decision, paras. 49-53). In my view, it ought to have been clear to the plaintiff that the passage of the new Cannabis Act had made his motion unnecessary.

[9] Further, this was not a motion brought in the public interest. The plaintiff did not seek a declaration that the legislation in question was invalid as it relates to everyone. Instead, he sought an individual exemption only.

[10] For these reasons, I believe that the plaintiff should pay costs to the defendant. I turn now to the amount of those costs.

[11] The overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances: Boucher v. Public Accountants Council for the Province of Ontario (2004), , 71 O.R. (3d) 291 (C.A.); Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). In my view, the amount sought by the defendant is both fair and reasonable, having regard to the complexity of the issues involved and the time spent by counsel for the defendant in responding to the motion. According to the defendant’s bill of costs, on a full indemnity basis, the fee charged by the Department of Justice to the defendant, even at a rate substantially below that charged in the private sector, is over $7,200, all-inclusive. On a partial indemnity basis, this represents costs in the amount of more than $4,300. However, the defendant seeks costs of only $3,000. This is, perhaps, even more than fair and reasonable.

[12] For the foregoing reasons, the plaintiff shall pay to the defendant its costs in the amount of $3,000, all-inclusive, within 30 days of the release of these reasons.

Ellies J. Released: December 21, 2018