Court File and Parties

Court File No.: CV-21-12-0000 Date: 2022-04-07 Superior Court of Justice - Ontario

Re: POORKID INVESTMENTS INC., THE COACH PYRAMIDS INC. AND BRIAN HAGGITH, Applicants And: SOLICITOR GENERAL OF ONTARIO SYLVIA JONES, ONTARIO PROVINCIAL POLICE COMMISSIONER THOMAS CARRIQUE, ONTARIO PROVINCIAL POLICE CHIEF SUPERINTENDENT JOHN CAIN, ONTARIO PROVINCIAL POLICE INSPECTOR PHILIP CARTER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Respondents

Before: Justice D.A. Broad

Counsel: W. Peter Murray, for the Applicants Daniel Huffaker, for the Respondents

Costs Endorsement

Background

[1] The applicants are the named representative plaintiffs in a class proceeding, not yet certified, brought against the respondents (collectively the “Crown”) in a Statement of Claim issued February 19, 2021 (the “Claim”).

[2] In the Claim the applicants seek damages for misfeasance in a public office, nonfeasance, negligence and nuisance against the Crown on behalf of all businesses and residents of the community of Caledonia, Haldimand County and surrounding areas, arising from a blockade of three public highways and a railway line serving Caledonia and the occupation of the subdivision within Caledonia by protesters.

[3] Pursuant to Reasons for Judgment released February 10, 2022, the applicants were successful in obtaining an order declaring s. 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019 c. 7, Sched. 17 (the “CLPA”) of no force and effect as being inconsistent with 96 of the Constitution Act, 1867 and in lifting the automatic stay imposed by virtue of s. 17 of the CLPA on the Claim until they obtained an order on motion that the Claim is 1) being brought in good faith and 2) that there is a reasonable possibility that it would succeed.

[4] The Reasons for Judgment encouraged the parties to seek agreement on the costs of the application, and directed that, failing such agreement, the parties may make written submissions on costs. The parties have now delivered their written submissions on costs.

Positions of the parties

[5] The applicants seek full indemnity or “special costs” in the sum of $82,823.04 on the basis that the application was “public interest” litigation. The applicants say that the litigation has a significant societal impact, they had no pecuniary interest that would justify the proceeding on economic grounds, and it would not have been realistic to pursue the application with private funding. In the alternative, the applicants submit that they should be awarded costs on a substantial indemnity basis in the sum of $74,540.73, being 90% of the full indemnity amount.

[6] The respondents acknowledge that the applicant is entitled to costs of the application and take no issue with respect to the time expended by counsel or the hourly rates on a partial indemnity scale, representing 60% of the actual time charged by the applicants’ counsel to their clients. This would result in a costs award of $49,908.40, inclusive of HST and disbursements.

Discussion

[7] The sole issue for determination on the question of costs is whether the applicants are “public interest litigants” so as to justify an award of elevated costs on that basis.

[8] In the case of Carter v Canada (Attorney General), 2015 SCC 5 the Supreme Court of Canada confirmed at para. 139 the observations expressed by the Court in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), 2007 SCC 2 that issues of public importance will not in themselves automatically entitle a litigant to preferential treatment with respect to costs, and that the standard is a high one such that only “rare and exceptional” cases will warrant such treatment.

[9] At para. 140 of Carter the Supreme Court ruled that the exercise of a judge’s discretion on a motion for special costs in a case involving a public interest litigant is to be guided by the following principles:

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 rare 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.

[10] In the case of Bertrand v. Acho Dene Koe First Nation, 2021 FC 525 (Fed. Ct.) Grammond, J. referencing Carter, noted at para. 18 that not all cases involving a public interest issue will lead to costs being awarded on an elevated basis observing that the Supreme Court of Canada held that such awards would only be made in cases having a “widespread societal impact.” He added that “even the fact that the constitutional validity of legislation is at stake is insufficient to meet this threshold,” citing Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at para. 274.

[11] The foregoing principles were echoed in the very recent case of Beacon Hill Park Trust (Re), 2022 BCSC 294 in which Punnett, J. stated at para. 143:

the fact that a claim is novel or that it involves "matters of public importance" that "transcend the immediate interests of the named parties" as described in Adams, 2009 BCCA 563 is not sufficient to satisfy the first ground of the public interest test. To meet the test the issues must be "truly exceptional" with "significant and widespread societal impact" (Trial Lawyers Association of British Columbia (Attorney General), 2021 BCSC 1675, para. 31).

[12] In my view the issue in the case at bar, namely whether the particular screening mechanism imposed by s. 17 of the CLPA on claims against the Provincial Crown based on misfeasance in public office is consistent with s. 96 of the Constitution Act, 1867 is not “truly exceptional” and does not involve “widespread societal impact,” in a manner which may be compared to Carter which was concerned with medical assistance in dying. I therefore find that the applicants have not met the first branch of the test laid down in Carter.

[13] I also find that the applicants have failed to meet the second branch of the Carter test which requires that the party seeking special costs show that it has no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic ground, and that it would not have been possible to effectively pursue he litigation in question with private funding.

[14] In my view, the present application which sought a finding of constitutional invalidity in reference to s. 17 of the CLPA is sufficiently linked to the Claim, which seeks damages against the Crown arsing from the blockades in Caledonia, such that it cannot be said that the applicants have no personal, proprietary or pecuniary interest in the constitutional litigation. S. 17 represented a significant impediment to the successful prosecution of the Claim which the constitutional challenge to s. 17 sought to remove.

[15] Moreover, the applicants have effectively pursued this application with private funding and have led no evidence to the contrary, such as the case being pursued pro bono by counsel (see Beacon Hill at para. 145).

[16] I find that the applicants have failed to make out a basis for an award of elevated costs on public interest grounds. The applicants are entitled to an award of costs on a partial indemnity basis on the amount acknowledged by the respondents.

Disposition

[17] It is therefore ordered that the respondents pay to the applicants costs fixed on a partial indemnity basis in the sum of $49,908.40, inclusive of HST and disbursements. This amount is to be paid within 30 days hereof.

D.A. Broad, J. Date: April 7, 2022