Court File and Parties

COURT FILE NO.: CV-20-00649404-0000 DATE: 20221014

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

NELL TOUSSAINT Plaintiff

and –

ATTORNEY GENERAL OF CANADA Defendant

and –

CHARTER COMMITTEE ON POVERTY ISSUES, CANADIAN HEALTH COALITION, FCJ REFUGEE CENTRE, AMNESTY INTERNATIONAL CANADA, INTERNATIONAL NETWORK FOR ECONOMIC, SOCIAL AND CULTURAL RIGHTS, THE COLOUR OF POVERTY/COLOUR OF CHANGE NETWORK, THE BLACK LEGAL ACTION CENTRE, THE SOUTH ASIAN LEGAL CLINIC OF ONTARIO, AND THE CHINESE AND SOUTHEAST ASIAN LEGAL CLINIC AND CANADIAN CIVIL LIBERTIES ASSOCIATION Intervenors

Counsel: Andrew C. Dekany, Barbara Jackman, James Yap for the Plaintiff David Tyndale and Asha Gafar for the Defendant

HEARD: In writing

Reasons for Decision - Costs

PERELL, J.

[1] On October 14, 2020, Nell Toussaint commenced this action against the federal government. She sues Canada for $1.2 million for alleged contraventions of the Canadian Charter of Rights and Freedoms.[^1] Ms. Toussaint alleges that between July 2009 and April 30, 2013, at a time when she was not legally a Canadian resident, she was unlawfully excluded from health care essential to prevent a reasonably foreseeable risk of loss of life or irreversible negative health consequences. She sues Canada for, among other things, the violation of s. 7 (right to life) and s. 15 (equality) of the Charter.

[2] Canada brought a motion to have Ms. Toussaint’s action dismissed on a variety of grounds. On February 10, 2022, Canada delivered a Notice of Motion making the following objections to the Amended Amended Statement of Claim; visualize:

The Statement of Claim discloses no reasonable cause of action:

(a) Canadian courts have already decided, based on the same facts asserted in this claim, and taking into account Canada’s international obligations, that [Ms. Toussaint’s] exclusion from health care coverage under the IFHP is not a breach of her Charter rights;

(b) The facts pleaded do not disclose any cause of action or right to damages under international law;

(d) The facts pleaded do not disclose any right to a declaration by this Court:

(i) that [Ms. Toussaint’s] rights under an international treaty have been breached;

(ii) that IFHP breaches the Charter;

(iii) that [Canada’s] response to the UNHRC Committee’s views breached the Charter;

(e) The non-binding views of an international tribunal do not give right to any right to damages in this Court;

(f) It is settled law that Canadian legislation, which generally limits public health insurance coverage to residents, complies with the Charter;

(g) It is settled law that a right to health care insurance coverage regardless of status is not a principle of fundamental justice;

(h) [Ms. Toussaint’s] attack on the constitutional validity of a policy which is no longer in effect is moot and would serve no purpose.

(i) The action is statute barred by the Limitations Act;

(j) There is no basis in law for [Ms. Toussaint’s] claim that the common law rules of res judicata, issue estoppel, abuse of process and collateral attack are unconstitutional if they bar a claim against [Canada].

The action is frivolous and vexatious, and an abuse of process:

(a) [Ms. Toussaint] is seeking to re-litigate of issues previously decided and the litigation of matters that have been concluded;

(b) In previous proceedings dating back to 2010, [Ms. Toussaint] either did raise, or could have raised the Charter arguments and international law arguments referred to in the Statement of Claim, including a potential claim for damages;

(d) The action is an impermissible collateral attack on a decision of a federal tribunal.

The Statement of Claim sets out allegations that are frivolous and vexatious, and an abuse of process of the Court, in particular:

(a) Allegations made without evidentiary foundation;

(b) Allegations based on assumptions and speculation, or which are incapable of proof;

The court has no jurisdiction over parts of the relief claimed in the Statement of Claim:

(a) [Ms. Toussaint] is effectively seeking judicial review of decisions of a federal tribunal, matters which are in the exclusive jurisdiction of the Federal Court.

[3] I dismissed Canada’s motion.[^2] I held that: (a) Ms. Toussaint’s action is within the jurisdiction of the Ontario Court; (b) it is not plain and obvious that Ms. Toussaint’s action is out of time; rather, it is plain and obvious that the action is timely; (c) it is not plain and obvious that Ms. Toussaint’s action is res judicata or an abuse of process; (d) there is no contravention of the rules of pleading; and (e) it is not plain and obvious that Ms. Toussaint’s action is doomed to fail; it remains to be determined whether her claims may resonate in Canada.

[4] I directed that if Ms. Toussaint and Canada cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Toussaint’s submissions within twenty days from the release of these Reasons for Decision followed by Canada’s submissions within a further twenty days.

[5] Ms. Toussaint requests costs on a substantial indemnity basis of $181,666.71, all inclusive. Her claim for costs on a partial indemnity basis is $121,111.14, all inclusive.

[6] Canada does not dispute that Ms. Toussaint is entitled to her costs. Its position is that there is no reason to award costs on a substantial indemnity scale and that the claim for costs on a partial indemnity basis is unreasonably high. In particular, it submits that the amounts requested (a) reflect work which is unrelated to the merits of the motion; (b) are out of proportion to the nature of the motion and the amount of material filed; and (c) hugely out of proportion to similar costs awards granted in similar cases.

[7] The court’s discretion in awarding costs arises under the authority of s. 131(1) of the Courts of Justice Act[^3] and is to be exercised by a consideration of the factors in rule 57.01(1) of the Rules of Civil Procedure. These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.

[8] The traditional discretionary principles developed for costs awards are codified in rule 57.01(1), which states:

Factors in Discretion

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(iii) any other matter relevant to the question of costs.

[9] The most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale.[^4]

[10] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant.[^5] The overriding principle in awarding costs is reasonableness.[^6]

[11] The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. In some cases, it may be reasonable for the successful party to make exhaustive efforts and to commit enormous legal resources, and in those cases, it might be said that the unsuccessful party could reasonably expect to pay those costs. In other cases, however, the successful party may have been well served by giving his or her lawyer instructions to make exhaustive efforts, but it might be disproportionate and unreasonable to expect the unsuccessful party to pay those costs, even if he or she would have expected or anticipated that his or her foe would have marshalled those legal resources.[^7]

[12] In Davies v. Clarington (Municipality)[^8] at para. 52, Justice Epstein stated that the overriding principle in awarding costs is reasonableness. She stated:

As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher [Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)], this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."

[13] Subject to the costs consequences provisions of the offer to settle rule, only in exceptional cases are costs awarded on a substantial indemnity scale[^9] or on a full indemnity scale.[^10] Costs on a substantial indemnity scale or full indemnity scale are reserved for rare and exceptional cases, where the conduct of the party against whom costs is ordered is reprehensible or where there are other special circumstances that justify costs on the higher scale.[^11]

[14] I agree with Canada that there is nothing in the circumstances that would justify an award of costs on a substantial indemnity basis. The appropriate scale in the circumstances of the immediate case is the partial indemnity scale.

[15] For somewhat different reasons, I also agree with Canada’s submissions that the claim for costs on a partial indemnity basis is unreasonably high.

[16] As to the reasonableness of the hours expended on the motion, I do not see much work unrelated to the merits of the motion and I see nothing wrong and a great deal that was right in the extra work expended to consider the submissions of the Intervenors.

[17] The circumstance that Canada identified what it said were similar cases where the costs award was much less was not of much assistance given that the argument is subjective as to where similarity lies, and the immediate case is not easily comparable to any other case.

[18] I do know the many legal subject matters covered on the motion were difficult, and I know that the case called for a great deal of research and preparation.

[19] And Canada’s submissions of an unreasonable expenditure are significantly weakened by the circumstance that it did not reveal the hours it expended to prepare for the motion.

[20] Having regard to the various factors set out in in rule 57.01(1), the appropriate award in the circumstances of the immediate case is $92,000, all inclusive.

Perell, J.

Released: October 14, 2022

COURT FILE NO.: CV-20-00649404-0000

DATE: 20221014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NELL TOUSSAINT Plaintiff

and –

ATTORNEY GENERAL OF CANADA Defendant

and -

REASONS FOR DECISION – COSTS

PERELL J.

Released: October 14, 2022

[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [^2]: Toussaint v. Canada (Attorney General), 2022 ONSC 4747. [^3]: R.S.O. 1990, c. C.43. [^4]: McCracken v. Canadian National Railway, 2012 ONSC 6838; Hague v. Liberty Mutual Insurance Co., 2005 13782 (ON SC), [2005] O.J. No. 1660 (S.C.J.); Pike's Tent and Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.); Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 O.R. (3d) 135 (C.A.). [^5]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 24 (C.A.); Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 9852 (ON CA), [2004] O.J. No. 2102 at para. 97 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 at para. 4 (Ont. C.A.); McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 63806 (ON SC), 74 O.R. (3d) 728 at paras. 23-25 (S.C.J.); Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.). [^6]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52 (C.A.). [^7]: Das v. George Weston Limited, 2017 ONSC 5583 at para. 65, var’d 2018 ONCA 1053. [^8]: (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). [^9]: United States of America v. Yemec (2007), 2007 65619 (ON SCDC), 85 O.R. (3d) 751 (Div. Ct.); Foulis v. Robinson, 1978 1307 (ON CA), [1978] O.J. No. 3596, 21 O.R. (2d) 769 (C.A.). [^10]: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.). [^11]: Whitfield v. Whitfield, 2016 ONCA 720 at para. 23; St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, supp. reasons 2010 ONCA 479; Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.); McBride Metal Fabricating Corp. v. H & W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97 at para. 38 (C.A.).

Toussaint v. Canada (Attorney General), 2022 ONSC 5851

Case Summary

Court File and Parties

Reasons for Decision - Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2