Court File and Parties

COURT FILE NO.: CV-20-00652728 DATE: 20210319 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Toronto International Celebration Church (1424924 Ontario Inc.), Applicant AND: Her Majesty the Queen as Represented by the Attorney General of Ontario, Respondent AND: Canadian Constitution Foundation, Intervenor

BEFORE: Davies J.

COUNSEL: Michael Lacy, Lawrence Gridin and Alex Alton, for the Applicant Josh Hunter, Daniel Guttman, Ravi Amarnath and Savitri Gordian, for the Respondent Ryan O’Connor, for the Intervenor

HEARD at Toronto: in writing

REASONS FOR DECISIONS ON COSTS

A. Overview

[1] The Toronto International Celebration Church has brought an application to strike down the provision of Ontario’s Rules For Areas In Stage 1, O. Reg. 82/20 prohibiting more than 10 people from attending in-person religious services. The Church argues that O. Reg. 82/20 is an unjustified limit on its freedom of religion as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms.

[2] The Church also brought an urgent application for an interim injunction pending the hearing of its Charter challenge. On December 18, 2020, I heard and dismissed the interim injunction application (see Toronto International Celebration Church v. Ontario (Attorney General), 2020 ONSC 8027).

[3] Despite being unsuccessful, the Church now seeks $75,000 in costs on the injunction application. The Church argues that costs are warranted because this case raises a novel issue of significant public importance. The Attorney General does not seek any costs on the injunction application but argues that this case does not warrant awarding costs to the unsuccessful party.

[4] The Court has discretion to award costs in favour of an unsuccessful party. Rule 57.01(2) of Rules Of Civil Procedure, R.R.O. 1990, Reg. 194 states, “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.” However, costs should only be awarded in favour of an unsuccessful litigant in very rare cases: B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315 at 390. As the Supreme Court of Canada held in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at para. 35, “bringing an issue of public importance to the court will not automatically entitle a litigant to preferential treatment with respect to costs”. Something more will be required to justify an extraordinary cost order in favour of an unsuccessful litigant, even in the context of Charter litigation. For example, in Fontaine v. Canada (Attorney General), 2017 ONCA 26 at para.71, a case dealing with Indian Residential School Settlement Agreement, the Court granted costs to some of the unsuccessful litigants. The Court noted that costs in favour of an unsuccessful litigant are rare. Nonetheless, the Court held that a cost award was justified in that case because the appeal raised and clarified important legal issues that transcend the interests of the parties.

[5] In my view, this is not one of those rare or exceptional cases in which the Church should be granted costs on the interim injunction motion. The Church’s Charter application does raise very important legal issues about whether O. Reg. 82/20 constitutes an unjustified infringement of freedom of religion. Ontario concedes that O. Reg. 82/20 restricts the religious freedom of the Church and its members. The application will, therefore, turn on whether the government can justify the restriction under s. 1 of the Charter. The burden will be on Ontario to establish that the restriction on the number of people who can attend an in-person religious service is a justified limit on freedom of religion. If the Church is successful on its application to strike down O. Reg. 82/20, the ruling will have important implications for all religious institutions.

[6] However, on the injunction application, the Church only sought an interim exemption from O. Reg. 82/20 to allow the Church to remain open for in-person services under certain conditions. The Church emphasized that the remedy sought on the injunction application was narrow because it would apply to the Church only and would not allow other religious institutions to conduct in-person services. The focus of the injunction application, as opposed to the Charter application, was not on the issues of broad public interest but on the narrow interests of the Church and its member to have in-person services.

[7] In addition, the injunction application did not raise any novel legal issue. The result turned on the application of settled legal principles. While I found that the Church’s Charter challenge has merit and the Church and its members will suffer irreparable harm if the Church remains subject to the restrictions in O. Reg. 82.20, I ultimately concluded that the harm that would be caused by granting an injunction outweighed the harm to the Church’s freedom of religion. My ruling simply applied the established test for granting an interim injunction in the context of Charter litigation.

[8] This is not an appropriate case to order costs against Ontario as the successful party and I decline to award any costs to either party for preparing their facta, preparing oral argument or attending the injunction hearing.

[9] Some of the work done in advance of the injunction application may be relevant to the merits of the Charter challenge as well. For example, Ontario filed affidavits from six experts, which address the rationale for the restrictions on religious services and the risks of COVID-19 spread in congregant settings. All of the experts were cross-examined on their affidavits. Ontario may rely on some or all of those expert reports on the merits of the Charter application to justify the restrictions under s. 1 of the Charter. Similarly, the Church filed two affidavits from its founding Pastor as well as affidavits from three of its members. These affidavits speak to the impact of the restrictions on the Church and its members, and the importance of in-person worship. The Church may rely on those affidavits in support of its argument that the restrictions in O. Reg. 82/20 on in-person religious services are not minimally impairing or proportionate to the harm they cause. To the extent the parties rely on work done in advance of the interim injunction application on the Charter application itself, this ruling does not preclude the parties from including those costs in their costs submissions at the end of the Charter application.

Davies J.

Date: March 19, 2021