Court File and Parties

COURT FILE NO.: CV-20-652216-0000 DATE: 2022-02-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen in Right of Ontario AND: Adamson Barbecue Limited and William Adamson Skelly

BEFORE: J.T. Akbarali J.

COUNSEL: S. Zachary Green and Padraic Ryan, for the Applicant Michael Swinwood and Liza Swale, for the Respondents

HEARD: In writing

Endorsement

[1] The applicant, Ontario, brought an application for injunctive relief relating to the respondents’ breach of various public health orders relating to COVID-19. Justice Kimmel granted the injunction in December 2020. At that time, the parties contemplated a come-back motion where the respondents would challenge the constitutionality of the laws and regulations on which the applicant relied for its injunctive relief.

[2] On June 28, 2021, the come-back motion was scheduled to proceed before me, but it was not constituted as anticipated. Rather than seeking an order to vary or set aside Kimmel J.’s order, the respondents, without having issued an originating process, and without having provided proper notice of the relief they were seeking, sought final Charter damages. I dismissed the respondent’s motion due to lack of jurisdiction because of the foundational procedural flaws in failing to constitute the proceeding so as to give the court the jurisdiction to hear it: 2021 ONSC 4660.

[3] I subsequently ordered the respondents to pay the applicant $15,000 in costs relating to the proceeding that had come before me in June 2021: 2021 ONSC 4924.

[4] However, Kimmel J., in her order dated December 4, 2020, fixed costs in the amount of $15,000 relating to the hearing before her in December 2020. She did not order costs paid at that time, but reserved them to be raised at the return of the motion the respondents intended to bring.

[5] In my decision on costs, I found that it was appropriate to defer dealing with the $15,000 in costs fixed by Kimmel J. because the substantive arguments the respondents had sought to raise had not been addressed on their merits. I thus held that the determination of whether the $15,000 in costs should be ordered would be deferred until a determination of the merits of the respondents’ constitutional arguments. However, I indicated that if, after six months, the respondents had not properly constituted their proceedings to have their constitutional arguments determined, Ontario could write to me to seek directions to allow it to have the costs fixed by Kimmel J. addressed.

[6] Ontario has now written to advise that it has been more than six months, and still no proceeding has been properly constituted. It relies on its earlier written submissions in support of its request for costs.

[7] By email, I asked the respondents about their position on Ontario’s request, but they did not respond, neither substantively nor to seek an opportunity to make further submissions. I thus assume they are prepared for me to proceed on the basis of the submissions already filed, as Ontario is.

[8] Rather than repeat what I wrote in my first costs endorsement, I direct the reader to it for the recitation of the relevant law.

[9] Ontario is presumptively entitled to its costs of the attendance before Kimmel J. It was the successful party and obtained the relief it sought. Although her determination on the merits was intended to be revisited in the context of the respondents’ constitutional arguments, they have taken no steps to bring a properly constituted proceeding before the court at which to do so. They have had more than enough time to bring forward their arguments. There is no reason to delay the question of the costs fixed by Kimmel J. any longer.

[10] The only question is whether, as the respondents argue, they should be excused from paying costs because they were acting in the public interest.

[11] In Guelph v. Wellington-Dufferin-Guelph, 2011 ONSC 7523, at para. 17, the court noted that the normal costs rules apply in public interest litigation, but the rules include a discretion to relieve the loser of the burden of paying the winner’s costs, and that discretion has been exercised in favour of public interest litigants.

[12] In Incredible Electronics Inc. et al. v. Attorney General of Canada et al., 2006 CanLII 17939 (ON SC), at para. 73, Perell J. noted that there are no categorical rules about the exercise of the court’s discretion in cases of public interest litigation; each case must be decided on its own facts.

[13] In The St. James’ Preservation Society v. Toronto (City), 2007 ONCA 601, at para. 23, the Court of Appeal described the factors that are relevant to considering whether an unsuccessful litigant should be excused from paying costs because it was acting in the public interest:

a. The nature of the unsuccessful litigant;

b. The nature of the successful litigant;

c. The nature of the lis and whether it was in the public interest;

d. Whether the litigation had any adverse impact on the public interest; and

e. The financial consequences to the parties.

[14] In this case, the unsuccessful litigants are a private individual and a private business. The successful litigant is Ontario. There is a clear power imbalance between them.

[15] The question about whether the litigation was in the public interest, or had any adverse impact on the public interest, is surely a polarizing one. The respondents had their supporters among the public, who strongly disagreed with the public health regulations put in place in an attempt to control the COVID-19 pandemic. There is no doubt that many Ontarians have suffered due to the restrictions. At the same time, the government’s actions were taken in response to a pandemic that has cost many Ontarians their lives, or their health. There has been significant support for the public health measures among the public as well.

[16] In her reasons granting the injunctive relief, Kimmel J. observed that the public health objectives of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17 and the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 are clear. The public health measures were taken by the government in the public interest to try to prevent COVID-19, and its resultant morbidity and mortality.

[17] Importantly, the respondents here did not seek to challenge the law directly; rather, they disobeyed the law, and intended to raise constitutional arguments in their defence.

[18] As Kimmel J. found, the regulations at issue were designed to be preventative. By choosing to break the law rather than challenge it, the respondents engaged in conduct that Ontario had prohibited in furtherance of the public interest. The respondents have not established any reasonable basis for concluding that their “civil disobedience” (as their counsel characterized their behaviour) was justified in the public interest.

[19] In my view, by choosing to act in breach of preventative public health orders in the midst of a global pandemic, thus causing Ontario to bring this application, the respondents cannot claim that there is a public interest element to the litigation. Rather, the respondents’ actions were harmful to the public interest. I might have concluded differently had the respondents challenged the regulations rather than breached them, but that was not the path they took. In so doing, they chose to risk the spread of COVID-19 —something that could have a serious impact on others — because they were ideologically opposed to the regulations. That is a form of self-help that, in my view, disqualifies the respondents from claiming public interest litigant status.

[20] For the sake of completeness, I note that there was some economic benefit to the respondents in opening their restaurant in breach of the public health regulations, but I do not find that to be the motivating factor. Rather, I accept that their actions were ideologically based. The economic incentive to open would be minor when take-out was permitted in any event. I do not rely on this factor in reaching my conclusion that the respondents did not engage in public interest litigation.

[21] In the result, there is no reason why Ontario should not be awarded its costs, fixed by Kimmel J. in the amount of $15,000. I order the respondents to pay $15,000 all inclusive in costs to the applicant within thirty days.

J.T. Akbarali J.

Date: February 1, 2022