COURT FILE NO.: CV-18-590584

DATE: 20210726

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WORKING FAMILIES ONTARIO, PATRICK DILLON, PETER MACDONALD, THE ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO, FELIPE PAREJA, THE ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION AND ON BEHALF OF THE MEMBERS OF THE ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION, THE ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION AND LESLIE WOLFE, Applicants

– and –

THE ATTORNEY GENERAL OF ONTARIO and THE CHIEF ELECTORAL OFFICER OF ONTARIO, Respondents

– and –

THE CANADIAN CIVIL LIBERTIES ASSOCIATION, Intervenor

BEFORE: E.M. Morgan, J.

COUNSEL:

Paul Cavalluzzo, Adrien Telford, and Tyler Boggs, for the Applicants, Working Families Ontario, Patrick Dylan, and Peter MacDonald

Paul Cavalluzzo, Adrien Telford, and Christopher Perri, for the Applicant, Ontario English Catholic Teachers Association

Susan Ursel, Kristen Allen, and Natasha Abraham, for the Applicants, Ontario Secondary School Teachers Federation and Leslie Wolfe

Howard Goldblatt, Christine Davies, Daniel Sheppard, and Melanie Anderson, for the Applicants, Elementary Teachers Federation of Ontario and Felipe Pareja

Yashoda Ranganathan and David Tortell, for the Respondent, Attorney General of Ontario

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] On June 8, 2021, I issued my reasons for judgment in this Application. The Applicants were successful in having the challenged provisions of the Election Finances Act declared unconstitutional as being contrary to section 2(b) of the Canadian Charter of Rights and Freedoms. As the successful parties, they deserve their costs of the Application. Each set of counsel for the Applicants has provided written submissions on costs.

[2] The Respondent, Attorney General of Ontario, has responded to the Applicants’ costs submissions. The other Respondent, the Chief Electoral Officer of Ontario, and the Intervenor, the Canadian Civil Liberties Association, have made no submissions and take no position on costs.

[3] Costs are always discretionary under section 131 of the Courts of Justice Act. That discretion is to be exercised in accordance with the factors set out in Rule 57.01 of the Rules of Civil Procedure. These include the importance of the issues and complexity of the proceedings, the principle of indemnity for the successful party and the reasonable expectations of the unsuccessful party. Costs awards are generally to reflect the Court’s evaluation of what is reasonable and fair in the particular proceeding: Boucher v. Public Accountants Council of Ontario, 2004 14579 (ON CA), [2004] OJ No 2634, at para 26.

[4] At the outset I am compelled to say that although some of the Applicants have asked for costs on a full indemnity or substantial indemnity basis, this case is not one that requires an elevated scale of costs. The Court of Appeal has stated that partial indemnity costs are the norm unless justice can only be done in the circumstances by awarding costs on a higher scale: Laczko v. Alexander, 2012 ONCA 872, 2012 ONCA 0872. Substantial or full indemnity costs are reserved for reprehensible conduct on the part of one of the parties or its lawyers, and are not warranted merely because a piece of litigation has been hard fought: Young v. Young, 1993 34 (SCC), [1993] 4 SCR 3.

[5] Nothing in the way that counsel for the Attorney General of Ontario conducted this case would warrant the rebuke that would be expressed by a higher than usual scale of costs: Glenn v. Osmun, 4 2014 ONSC 3186. In fact, to the contrary, the lawyering on behalf of the Attorney General was highly professional, accommodating to the Applicants and to the Court-imposed timeframe for the case, and focused on the real issues of the case without unnecessary diversions. Counsel for the government was adversarial in strongly asserting the government’s constitutional defense, but they put forward their case without being needlessly argumentative or inappropriately aggressive: see Sagan v. Dominion of Canada General Insurance Co., 2014 16478 (SCJ).

[6] The Attorney General was unsuccessful in the result, but that was due to the weakness of the government’s evidence and not to the way that the case was conducted on its behalf. There are no grounds here to deviate from the ordinary application of a partial indemnity scale of costs.

[7] The Working Families Ontario group (“Working Families”) seeks a partial indemnity award of just over $350,000, including tax and disbursements. Counsel for the Attorney General concedes that significant work was done on the matter, but complains that this amount is high for a two-day court Application. Counsel for Working Families submit that the constitutional issues were complex and important and deserved careful and thorough attention. They also state that the amount that they seek is within the range of other comparable constitutional cases. In making this argument, they specifically reference Broomer v. Ontario (Attorney General), [2005] OJ No 2879, at para 21 (Div Ct), where the successful Applicants’ costs request of roughly $309,000 was described as “reasonable and appropriate”.

[8] I agree that the Working Families request is in line with other cases such as Broomer. But from the Attorney General’s perspective there is a significant feature of the case at bar that distinguishes it in terms of costs. In Broomer there was one set of Applicants with one law firm representing them and carrying the entire case. The $309,000 in costs was for the entire case, with no other claimants. That is not the situation here. There were four sets of Applicants, each of which presented the identical legal challenge. While each group had its own set of facts to put forward and they were each entitled to initiate their own separate proceeding, they were all ultimately consolidated into one Application because the issues were identical.

[9] The Applicants in Broomer were the members of a single family who had been denied social assistance benefits when they were convicted of offenses in relation to those benefits. They challenged the regulations under the Ontario Works Act that had resulted in this denial and succeeded in having those regulations struck down. For this effort, their costs request was a reasonable one.

[10] But one wonders what the Court’s response in Broomer would have been had three other families in the same situation brought separate proceedings that were then amalgamated into one because they all raised the same issue. If $309,000 for the first family of applicants was reasonable, would another $309,000 for the second family of co-applicants also be reasonable? And the third family? And the fourth family? Each of the families would have been justified in seeking to strike down the regulations, but the government generally pays the costs of the successful test case that provides a remedy for the entire society. It is unusual for it to face simultaneous bills of cost for multiple similarly situated challengers.

[11] In the case at bar, there is a second perplexing costs issue with respect to the four co-Applicant groups: two of them – Working Families and Ontario English Catholic Teachers Association (“OECTA”) – are represented by the same law firm which has delivered two separate cost submissions. To be clear, I do not think that there is anything wrong with the same firm representing two different co-Applicants. Likewise, I do not say that there is anything improper about each of their separate bills of costs taken on their own. And I have no doubt that both sets of clients were well served by their lawyers. But again, the opposing side would not be wrong to think that some economies of scale must apply, or else it should be spared the full brunt of two cost bills.

[12] I note that each of the four sets of Applicants seeks a different amount and, appropriately, the relative size of each request seems to roughly parallel the size of the role played by each in the Application. Lest there be any misunderstanding, this is a quantitative, not a qualitative observation. In terms of quality of work and advocacy, each set of counsel was excellent.

[13] Working Families, represented by the Cavalluzzo firm, played the lead role and, as indicated, its bill of costs comes in at $350,000, all inclusive. The other three Applicants and their counsel each report incurring less than half this amount on a partial indemnity scale. OECTA, also represented by the Cavalluzzo firm, played a quantitatively smaller role and its partial indemnity bill is just over $125,000, again all-inclusive. The Ontario Secondary Schools Teachers’ Federation (“OSSTF”), represented by the Ursel firm, presents a bill on a partial indemnity basis, including HST and disbursements, that totals just about $115,000. The Elementary Teachers’ Federation of Toronto (“ETFT”), represented by the Goldblatt firm, presents a bill of costs that adds up to roughly $100,000 on a partial indemnity basis, including disbursements and HST.

[14] Using round figures as I have, the total costs request from the Applicants’ side, taken on a partial indemnity scale, adds up to $690,000. Counsel for the Attorney General submit that this is about $190,000 more than is reasonable overall. It is their view that a total cost bill of $500,000 – roughly 75% of what the Applicants seek in total – would be in line with what one would expect in a constitutional case like this. By comparison, the Attorney General’s own bill of costs comes to a total of just over $200,000.

[15] I agree with the overall scale of costs proposed by counsel for the Attorney General. In keeping with the way that the Applicants organized their participation and in comparing their respective bills of costs, I would divide the costs in the following way (all figures inclusive of fees, disbursements, and HST):

Working Families

$250,000

OECTA

$ 70,000

OSSTF

$ 95,000

ETFO

$ 85,000

Total:

$500,000

[16] The Attorney General of Ontario shall pay costs in the total amount of $500,000 to the Applicants, to be divided among them as set out above.

[17] There are no costs awarded for or against the Chief Electoral Officer or the Canadian Civil Liberties Association.

Morgan J.

Date: July 26, 2021