Court File and Parties

Court File No.: CV-21-00665404 Date: 2022-03-15 Superior Court of Justice - Ontario

Re: Working Families Coalition (Canada) Inc., Patrick Dillon, Peter Macdonald, Ontario English Catholic Teachers’ Association, The Elementary Teachers’ Federation of Ontario, Felipe Pareja, The Ontario Secondary School Teachers’ Federation and Leslie Wolfe, Applicants – AND – The Attorney General of Ontario, Respondent – AND – The Canadian Civil Liberties Association, Centre for Free Expression at Ryerson University, Criminal Lawyers’ Association, Democracy Watch and the Chief Electoral Officer of Ontario, Interveners

Before: E.M. Morgan J.

Counsel: Paul J.J. Cavalluzzo, Adrienne Telford, Chris Perri, Tyler Boggs and Michelle Thomarat, for the Applicants Working Families Coalition (Canada) Inc., Ontario English Catholic Teachers’ Association, Patrick Dillon and Peter Macdonald Susan Ursel and Kristen Allen, for the Applicant Ontario Secondary School Teachers’ Federation Howard Goldblatt, Christine Davies, Daniel Sheppard, and Melanie Anderson for the Applicant Elementary Teachers’ Federation of Ontario Robert W. Staley, Jonathan Bell, Doug Fenton, Andrew Sahai, and Megan Steeves, for the Respondent Attorney General of Ontario

Heard: Costs submissions in writing

Costs Endorsement

[1] The government of Ontario has now faced two Charter challenges to its enactment of restrictions on election advertising spending. Both were brought against the government by the same group of parties.

[2] The first case challenged Bill 254 containing amendments the Election Finances Act, RSO 1990, c E7. It was a success for the challengers in striking down the legislation on the basis of section 2(b) of the Charter: Working Families Ontario v. Ontario, 2021 ONSC 4076 (“Working Families I”). As a result of that success, the challengers were awarded costs in the overall amount of $500,000: Working Families Ontario v. Ontario, 2021 ONSC 5178 (“Working Families Costs”).

[3] The second case challenged Bill 307 enacted as the Protecting Elections and Defending Democracy Act, 2021, SO 2021, c. 31. It was a success for the Attorney General of Ontario in defending the legislation on the basis of section 33 of the Charter: Working Families Coalition (Canada) Inc. v. Ontario, 2021 ONSC 7697 (“Working Families II”). As a result of that success, the government now seeks costs in the overall amount of $580,652.54.

[4] In the final paragraph of the latter judgment, I invited counsel to make written submissions on costs. At the same time, I indicated that there will be no costs awarded for or against any of the Interveners. I have now received each of the parties’ submissions.

[5] Counsel for the Working Families Coalition (Canada) Inc., together with counsel for the Ontario Catholic English Teachers Association and the individual Applicants Patrick Dillon and Peter Macdonald (collectively “Working Families”), concede, as they must, that the general rule is that the successful party is awarded costs. They submit, however, that one frequent exception to that rule is where the losing party has raised novel issues of public importance such as the constitutionality of government measures.

[6] The exercise of discretion in that respect recognizes, as Working Families’ counsel puts it, “the societal interest in having novel legal claims on matters of public importance adjudicated by the courts.” Citing Ontario (Attorney General) v Bogaerts, 2019 ONCA 876, at para 92, they state that, courts readily depart from the “loser pays” approach where a government party successfully defends itself in constitutional litigation.

[7] Counsel for the Elementary Teachers Federation of Ontario (“ETFO”) make a similar point. They emphasize ETFO’s (along with the other labour union Applicants’) democratic structure and, quoting Sharpe J. (as he then was) in Mahar v Rogers Cablesystems Ltd. (1995), 25 OR (3d) 690 (SCJ), emphasize the principle of access to justice for public interest litigants:

[P]ublic interest litigants are in a different position than parties involved in ordinary civil proceedings. The incentives and disincentives created by costs rules assume that the parties are primarily motivated by the pursuit of their own private and financial interests. An unrelenting application of those rules to public interest litigants will have the result of significantly limiting access to the courts by such litigants.

[8] In the circumstances of this case, there is a certain artificiality and irony to the access to justice argument put forward by the Applicants. It has been the Applicants’ position in challenging the statutory limits on third party electoral advertising that while the law may still permit other types of advertising and public dissemination of election-oriented information, the lowered spending ceiling contained in the challenged legislation impacts especially dramatically on them. The reason for this, according to the Applicants, is that the legislation in issue effectively bars them from engaging in the most expensive form of advertising: television commercials.

[9] The Applicants have argued that high-cost television advertising is the most impactful, and that the government-imposed spending restrictions are implicitly aimed at them since they are the highest spending political advertisers in the province: Working Families II, at paras 81-82. In the predecessor litigation challenging the same legislation under section 2(b) of the Charter, the same Applicants with the same counsel contended that spending restrictions are especially restrictive of their freedom of expression, as they are the only civil society parties who can spend as much as government itself and who can thereby have an impact that counters that of the government: Working Families I, at paras 57-60.

[10] In my reasons for decision in the case at bar, I pointed out that anyone can use low-cost vehicles such as op-eds, blogs, social media posts, etc. to express their views without restriction; it is only those who engage in high-cost advertising whose spending is impinged by the legislation in issue: Working Families II, at para 77. The Applicants have countered that they are uniquely situated in the political advertising scene, and that it is their participation that assures equality among society’s electoral voices. In other words, the Applicants view the impugned legislation as undermining the goal of egalitarian elections not because it restricts those with the least financial means, but because it restricts those with the most means.

[11] I do not mention these arguments as a criticism. The well-funded have just as many Charter rights as the indigent. Moreover, the Applicants’ arguments about the impact of spending restrictions on those with a lot to spend versus those with little to spend are factually accurate. But access to justice, unlike enforcement of rights, does vary with wealth. The Applicants have managed to amass a substantial amount of funds to pursue their political ends; logic dictates that, by the same measure, they have a substantial amount of funds to pay costs where their challenge is unsuccessful.

[12] Parties are allowed to collect money for the causes they hold dear. But the argument that access to justice could be impeded by a costs award where the justice sought to be accessed is, essentially, the right to spend a lot of money, inevitably strikes a hollow chord.

[13] In addition to arguing that there ought to be no costs award here, the Applicants all take issue with the amount of costs sought by the Attorney General. They submit that the government did not have to go to expensive outside lawyers as they have their own Ministry of the Attorney General staff that could have handled the case. In addition, they contend that the respondent’s legal team overworked the file and engaged in numerous cross-examinations, only a few of which turned out to be significant or cited in the reasons for judgment.

[14] It is axiomatic in our legal system that everyone has the right to counsel of their choice. That includes government parties. The Applicants may be right that the Ministry’s in-house legal team would have been capable of handling this case just like they were capable of handling the previous one, but it is not my role to second guess a party’s choice of lawyers or law firm. The government chose the lawyers it wanted to represent it, and the choice worked out well for them. There is nothing further for me to inquire about or to consider in terms of choice of counsel.

[15] I see no indication that the lawyers for the Attorney General overworked this case or spent unnecessary and superfluous hours on it. They did invest heavily in what they doubtless considered to be an important piece of constitutional litigation, and that investment paid the dividends that they deserved. I am not inclined to examine under a microscope the amount of research that the Attorney General’s counsel undertook or the number of lawyers that attended any particular examination or step in the proceeding. Nothing stands out as unreasonable in the bill of costs; any excessive scrutiny would be merely arguing with success.

[16] Finally, counsel for the Ontario Secondary Schools Teachers’ Federation (“OSSTF”) submits that the Attorney General’s lawyers cross-examined numerous witnesses and affiants, but that I only relied on one of the Applicants’ experts and three of their fact witnesses in my reasons for judgment. With respect, that does not indicate that the cross-examinations that were not specifically quoted or cited in my judgment were superfluous. All the evidence cumulatively forms the record, and that which is not specifically cited often impacts on the way that the evidence is received overall.

[17] Moreover, no one expects every cross-examination in a proceeding to end up being significant in the Court’s eyes. As it turned out, several of the cross-examinations were highly significant. One of the Attorney General’s cross-examinations, in particular, brought out the evidentiary foundation for analyzing the actual content of the television ads identified by the Applicants as being important to them.

[18] A costs inquiry properly focuses on the cost effectiveness of the lawyers’ work, with the emphasis being not only on the cost but its effectiveness. The more effective the product, the more cost it was worth incurring.

[19] The Attorney General’s costs request, while substantial, does not strike me as higher than in other intensely fought constitutional cases; indeed, it is significantly lower than what was spent and sought by the Applicants in their successful Charter challenge under section 2(b). In that case, I lowered the Applicants’ requested amount by about 25% to bring it down to the level that Attorney General now seeks: Working Families Costs, at para 14.

[20] Furthermore, I am cognizant of the fact that the cost request before me reflects the costs incurred in responding to all of the Applicants. While they shared the same legal position, each of the Applicants had separate counsel and was careful to say that they have separate interests and come to the case with a distinct factual background. They were, of course, correct in making that point, but litigating against multiple adversaries can increase the cost to the other side.

[21] The Applicants have not all submitted separate bills of costs, so it is difficult to say with precision how much work each put into the case in relation to the others. The costs payable to the Attorney General are therefore to be apportioned in accordance with my admittedly rough understanding of the amount of work done by each of the Applicant groups. Overall, I would round the Attorney General’s cost request down somewhat for ease of division and to reflect the same principle I brought to bear on the Applicants’ cost requests in the prior case.

[22] The Applicants shall pay the Attorney General costs in the all-inclusive amount of $500,000, divided as follows:

Working Families. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $200,000 OSSTF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $150,000 ETFO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$150,000

Morgan J. Date: March 15, 2022