COURT FILE NO.: 1321/22
DATE: 20221214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SIMON HAWKE, MICHAEL PUZZO, TIANA GLEASON, JAMES DONALDS and ASHANTÉ CAMARA
Applicants
– and –
THE UNIVERSITY OF WESTERN ONTARIO
Respondent
Lisa D. Bildy and Mark A. Jospeh, for the Applicants
Nadia Effendi, Christine Muir, Daniel Michaluk, Veronica Sjolin and Teagan Markin, for the Respondents
TRANQUILLI J.
REASONS ON COSTS
[1] These reasons follow my decision released September 23, 2022. The applicant students sought to restrain Western University from collecting proof of COVID-19 vaccine information from its students for the 2022-2023 academic year. The five students argued the collection of their personal health information was an unjustified invasion of their privacy rights and was in breach of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”). The application was argued on an urgent basis, given the immediate application of the policy to the academic year just underway. For reasons reported at Hawke v. Western University, 2022 ONSC 523, I held that Western demonstrated its collection of proof of vaccination was necessary to the proper administration of its lawfully authorized activity. The university was therefore not in breach of its obligations under s. 38(2) of FIPPA.
[2] Western University seeks its partial indemnity costs of the application in the amount of $97,721.11, inclusive of HST, based upon the presumptive rule that partial indemnity costs follow the event. It submits it was wholly successful in defending the application. It had to deploy multiple counsel to respond to the application on an urgent basis; nevertheless, it reduced its Bill of Costs to exclude duplication of work. Western also only seeks the attendance fees of its two counsel who made argument, although the entire team attended for the hearing.
[3] The applicant students submit there should be no costs as the nature of their application was novel public interest litigation. In the alternative, they argue that the university vastly overreached the simplicity and brevity of the application, as evidenced by the respondent’s material on the application and its Bill of Costs. With reference to the applicants’ Bill of Costs, and reasonable expectations of the parties, the applicants suggest a reasonable amount for costs would therefore be $22,875.
[4] There were no offers to settle. Neither party alleged any reprehensible conduct by the other.
[5] For the reasons that follow, I find that costs should follow the event and are awarded to Western University on a partial indemnity basis in the amount of $75,000 inclusive of HST and disbursements.
Analysis
[6] Section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43 and r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 set out the principles that guide the exercise of my discretion to award costs. The general rule is that partial indemnity costs should be awarded to the successful party: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732 at paras. 11-12.
[7] Courts have discretion to alter cost consequences where litigants seek to enforce their constitutional rights or raise matters of consequence to the public: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. However, a deviation from the usual cost consequences for the purpose of public interest litigation should not become routine. 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 litigant. They must also have a significant and widespread societal impact. The standard is a high one: only rare and exceptional cases will warrant such treatment. The litigants must also have no personal, proprietary, or pecuniary interest in the litigation that would justify the proceedings on economic grounds: Carter, at paras. 137-140.
[8] I find the circumstances of this case do not involve exceptional matters of public interest. There is limited novelty to the application. The application asserted the rights of five students from among an enrollment of thousands at the respondent university. The application asserted important privacy rights but confined that to an analysis of FIPPA and not pursuant to the Charter of Rights and Freedoms. While the issue may have been novel in the sense it was not previously decided in this specific factual context, the relevant case law and principles pointed strongly towards the result. The application was not entirely devoid of merit as it sought clarification of the extent of one’s control of personal information; however, novelty in this instance was at the low end of the continuum: Das v. George Weston Limited, 2018 ONCA 1053 at para. 245.
[9] The unsuccessful applicants are five individual students enrolled in different faculties and years of learning at the university. There is little information as to their backgrounds or ability to pay. I am prepared to assume that they are not able to finance this application. It is undisputed that the university was able to finance its response to the application.
[10] However, these five students were not alone in bringing this application; the participation of The Democracy Fund must attract consideration in the costs assessment. The Fund financed the application and is identified in conjunction with counsel of record for the applicants. The Democracy Fund asserts it is a registered charity and civil society organization supported by average annual individual donations of approximately only $90. The applicants submit the university, in contrast, is in a superior position to bear the costs of the application with its revenues of $1.3 billion.
[11] The Democracy Fund, via the applicants, has not asserted that it is, in fact, unable to pay a costs award either at all or at the amount sought by the university. This omission makes sense, given that the Fund’s own website acknowledges that its purpose is dedicated to constitutional rights, advancing education and relieving poverty, promoting those interests “through litigation and public education”. Indeed, the Fund’s website evidences its efforts to promote and solicit opposition to the respondent’s proof of vaccine policy and to sign up students for “free legal assistance”. While access to justice would tend to favour treating the applicants as public interest litigants, there is no evidence of impecuniosity or inability to meet a sizable costs award: Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509 at paras. 18-20.
[12] The consequences of the litigation are likely readily absorbed by the university. But in my view, the costs burden of this litigation is not one to be reasonably visited upon a public institution who collects tuition and is charged with the responsibility of delivering education to its students as well as responsibilities to its staff and faculty. In the context of considering costs where the application was brought by an organization constituted for litigation purposes versus a publicly funded post secondary institution, it would be unreasonable that the applicants, through their soliciting organization, The Democracy Fund, would not expect to bear the financial burden in the event of a loss.
[13] Even if I were to accept that this application involved public interest litigation, such a conclusion does not automatically preclude an adverse costs award. In these circumstances, the applicants’ status as public interest litigants do not excuse them from all cost consequences, but it is a factor to consider when addressing quantum: Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509 at para. 23.
[14] I must now fix an amount of costs that is fair and reasonable for the unsuccessful party to pay in this proceeding, as guided by the factors in Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.). The university was wholly successful in opposing the application. This was a focused application, with the vaccine policy reviewed only for its compliance with s. 38(2) of FIPPA. The application nevertheless raised an important issue in respect of the university’s privacy obligations, which was significant to all parties on the application. I acknowledge the applicants put a relatively brief and focused record forward for the application which assisted somewhat in the efficiency of the application. However, the privacy breach allegations required the respondent to put a full record before the court to demonstrate its authority to impose the proof of vaccine policy and the evidentiary basis that led to its decision to continue the mandate in September 2022. It is difficult for the court to conceive of a scenario where the applicants would have reasonably expected less effort from the university in responding to the application, particularly given the importance of the issue. It would not be unexpected in the circumstances of an urgent application that a number of lawyers and clerks would be deployed on behalf of the university in order to meet the expedited hearing date. The Democracy Fund sought out this litigation and ought to have expected that the university would thoroughly respond to the allegations.
[15] That said, given the importance of the issues, the focused nature of the application and the disparity between the respective bills of costs, in my view a further reduction is reasonable in the circumstances, which would also further endeavour to minimize any duplicative time.
[16] Western University is accordingly entitled to its costs in the amount of $75,000, inclusive of HST and disbursements.
Justice K. Tranquilli
Released: December 14, 2022
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ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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