COURT FILE NO.: CV-20-32 DATE: 2023/03/20

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Foxgate Developments Inc. Paul DeMelo for the plaintiff Plaintiff

• and -

Jane Doe, John Doe, Skyler Williams, or any agent or person acting under their instructions and other persons unknown and The Corporation of Haldimand County Defendants

Meaghen Daniel, Aliah El-houni, and Sima Atri for the defendant, Skyler Williams Bruce Macdonald for the defendant, The Corporation of Haldimand County Richard Ogden, Hera Evans, and Shayna Levin-Posh for the Intervenor, the Attorney General of Ontario

Ruling on Costs The Honourable Mr. Justice P. R. Sweeny

Introduction

[1] On December 13, 2022, I released my reasons in this matter granting a permanent injunction to Foxgate, and confirming that an interlocutory injunction was in force with respect to the Corporation of Haldimand County.

[2] I invited the parties to seek an agreement on costs. They were unable to agree. I have received and reviewed their costs submissions. This is my ruling on costs.

Position of the Parties

[3] Foxgate and Haldimand seek their costs as they were the successful parties. Haldimand seek costs of $13,000 on a partial indemnity basis for the motion. This was related to the issue of whether there was an interlocutory injunction presently in existence in favour of Haldimand. The defendant argued that there was not. I held that there was. Haldimand was successful. The amount claimed was not challenged as to quantum by the defendant. Foxgate seeks its costs relating to the proceeding in the amount of $136,679.50 plus HST on a solicitor client basis or full indemnity basis. This is claimed only from the time that Mr. Williams was added as a defendant on August 25, 2020 and excludes any costs related to the appeal.

[4] Mr. Williams says that this is public interest litigation and that he should not be liable for costs, or, alternatively, the costs should be left to be determined at the end of the litigation and, further, if they are to be awarded, they should be referred to an assessment officer and not fixed by me.

[5] I will first deal with the last two alternative requests of Mr. Williams.

Should the issue of costs be deferred to the end of the case?

[6] It is not appropriate to defer the awarding and payment of these costs until the end of the litigation. The costs incurred by Foxgate and Haldimand relate to the injunction which has been decided. The only issue is the costs associated with the injunction and not the costs associated with any damages claims. The argument that there is an appeal of this decision is not relevant to the costs decision. The fact that there is another proceeding pending involving Foxgate and the government does not lead to the need to defer this costs determination. The issue of costs should be decided now.

Should the costs be referred for assessment?

[7] There is no reason for the costs of this matter to be referred to an assessment officer. This is not an exceptional case that would warrant a referral to assessment under r. 57.01(3.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I am well placed to make a determination as to the appropriate quantum of costs.

Is this public interest litigation?

[8] The awarding of costs is an exercise of discretion under s. 131 of the Courts of Justice Act, R.S.O 1980, c. C.43. In exercising my discretion, I may take into consideration a number of factors outlined in r. 57.01(1) of the Rules. In Ontario, the general presumption is that a successful party is entitled to partial indemnity costs: see Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732, at paras. 11-12. In the case of public interest litigation, courts may depart from this general rule and excuse the unsuccessful party from paying costs: see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 37.

[9] In Okanagan, the court dealt with a case of public interest litigation brought by individual plaintiffs on behalf of their respective Indian bands. The plaintiffs sought advance costs from the Crown to allow their constitutional challenge to be pursued. Thus, the circumstances in that case were significantly different, and unlike in Mr. Williams’ case, there was a clear public interest component to the litigation in Okanagan.

[10] Indeed, only rare and exceptional cases will warrant a departure from the usual cost consequences on the basis of public interest litigation. The threshold is high, as this court recently observed in Hawke et al. v. The University of Western Ontario, 2022 ONSC 7017, at para. 7:

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.

[11] In St. James' Preservation Society v. Toronto (City), 2007 ONCA 601, 286 D.L.R. (4th) 146, the Court of Appeal approved of the following factors to be considered in determining whether costs should not be awarded because it was public interest litigation:

a. The nature of the unsuccessful litigant; b. The nature of the successful litigant; c. The nature of the dispute 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.

[12] In that case, the unsuccessful litigant had brought the claim purportedly in the public interest. In this case, Mr. Williams did not bring the claim. He was added to the claim as a defendant based on his acknowledged conduct, together with other unidentified defendants, of trespassing on Foxgate’s property and blockading roads in Haldimand. It was by virtue of having been added as a defendant that Mr. Williams then brought forth the argument that the Crown had an obligation to consult with respect to Foxgate’s development of the land and that it had not done so.

[13] Though applying the St. James’ factors is therefore not entirely apt here, I will nonetheless examine the factors briefly as they may relate to this claim.

a) The nature of the unsuccessful litigant

[14] There are four considerations with respect to Mr. Williams as the unsuccessful litigant, which were outlined by Ducharme J. at first instance in St. James' Preservation Society v. Toronto (City), at paras. 18-21.

[15] First, the unsuccessful litigant must not be acting to vindicate a purely private interest. Does Mr. Williams have no purely private interest? This is complicated in this case because Mr. Williams was added as a defendant based on his conduct. While Mr. Williams does not have a direct pecuniary or proprietary interest, he has asserted his right to occupy the land and he has done so.

[16] Second, the unsuccessful litigant must have a bona fide belief that the litigation is in the public interest. However, as Ducharme J. noted at para. 19, “the test for a costs exemption must be more than mere sincerity as even the most misguided and quixotic litigant might genuinely believe in her cause and in its importance for the public at large.” While Mr. Williams might justify his actions using genuinely held beliefs surrounding land defence and the rights of Indigenous peoples, in my view, he appears at best to be a misguided litigant.

[17] Third, the unsuccessful litigant must have a genuine interest in the matter as opposed to being a mere busybody or interloper. Mr. Williams spearheaded the protest and trespass as an individual Indigenous person. He was acting on his own throughout the occupation and did not have the support of Indigenous groups such as the Six Nations Elected Council or the Haudenosaunee Development Institute. Foxgate proceeded through years of obtaining the required development approvals, which were subject to consultation and public meeting under the Planning Act, R.S.O. 1990, c. P.13, without any person stepping forward to raise the issues that Mr. Williams eventually did. In my view, this lends support for characterizing Mr. Williams as a busybody or interloper.

[18] The fourth consideration is whether there were other potential litigants who were better suited to bring the litigation. In this case, no litigation was brought in order to stop the development or to assert Indigenous land rights. To the extent of there being other potential litigants to bring Indigenous land claims with respect to the Haldimand Tract, I referred in my decision to several cases where the issues raised by Mr. Williams had already been addressed by the court. His actions were his own and he bears responsibility for them.

b) The nature of the successful litigant

[19] The successful litigants in this case are a private corporation and a municipal corporation. Both entities were asserting their established rights—Foxgate, in accordance with its legal title and as a result of participation in the planning process, and Haldimand, in accordance with its responsibility over public roads and other municipal services. Further, as Ducharme J. commented at para. 23 (which was cited with approval by the Court of Appeal), “where a private actor is successful, it is more difficult to justify depriving them of the costs order they would ordinarily be entitled to.” That being the case here, this factor weighs against granting a costs exemption.

c) The nature of the dispute – was it in the public interest?

[20] As a preliminary matter, allowing the request by counsel for Mr. Williams to have the proceedings available on Zoom for public viewing should not be interpreted as an acknowledgement that this is public interest litigation. Criminal cases that have notoriety are made available on Zoom due to public interest, but that does not make those cases public interest litigation.

[21] There is limited novelty in this case. The issues raised by Mr. Williams have been raised in other cases by representatives of Indigenous groups. The fact that Mr. Williams advanced constitutional arguments does not automatically afford the case significant “novelty,” especially given that those arguments were dismissed. The issues are only novel in the sense that they had not been previously decided in this specific factual context, and therefore this factor does not heavily favour finding public interest litigation.

[22] Furthermore, this litigation was not commenced with the purpose of enforcing constitutional rights or raising matters of public importance. This litigation was necessitated as a result of the conduct of Mr. Williams and others who sought to interfere with Foxgate’s rights and with the use of public roads. Despite Mr. Williams’ assertions that he participated in this litigation for the purpose of broader collective interests in land defence and Indigenous rights, his interest was ultimately confined to stopping Foxgate’s development.

d) Whether the litigation had any adverse impact on the public interest

[23] Was there adverse impact on the public interest? Ducharme J. observed at para. 32 that:

The Ontario Law Reform Commission recommended that, to qualify for a public interest no costs order, the unsuccessful litigant should not have, “engaged in vexatious, frivolous or abusive conduct.” Such behaviour is clearly not in the public interest and will always be considered in public interest cases along with all of the other factors set out in rule 57. However, a court should also consider whether the litigation engaged in by the unsuccessful party actually had any other negative effects on the public interest. Where this is the case, the unsuccessful party’s claim for a no costs order may be less compelling. [Citations omitted.]

[24] This factor does not squarely fit in the present situation. Mr. Williams did not commence the litigation. Litigation was necessitated as a result of his and others’ conduct.

e) The financial consequences to the parties

[25] In dealing with the financial consequences to the parties, Foxgate and Haldimand have both incurred significant legal fees. This is not a case where the Crown is the opposing party.

[26] Mr. Williams asserts that he has obligations to support multiple dependents on an annual income of $90,000. However, the evidence is also that Mr. Williams received significant funds to assist him with legal costs associated with this litigation. Foxgate submits it was at least $140,000, but there is no affidavit from Mr. Williams that provides any details of the amount of money raised and actually available to him.

[27] In conclusion, this is not public interest litigation. To characterize this as public interest litigation risks inviting others to behave in the same manner as Mr. Williams, that is, trespassing, blockading roads, and destroying property and then seeking to justify those actions after the fact.

[28] Even if this were public interest litigation, Mr. Williams would still not be automatically excused from paying costs, but it would be a factor to consider when addressing quantum: see Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509, at para. 23, citing Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, [2007] 1 S.C.R. 38, at para. 25. See also Hawke et al. v. The University of Western Ontario, 2022 ONSC 7017, at para. 13.

[29] Mr. Williams will be responsible for the costs of Foxgate and Haldimand.

What scale of costs is appropriate?

[30] In my view, the costs should be awarded on a partial indemnity scale only. I am only dealing with the issues of the permanent injunction being granted and the interlocutory injunction in existence with respect to Haldimand. There are no enforcement or contempt proceedings before me. The award of solicitor and client costs, or full indemnity costs, is reserved for especially egregious conduct. In Net Connect Installation Inc v. Mobile Zone Inc., 2017 ONCA 766, the Court of Appeal noted at para. 8:

There is a significant and important distinction between full indemnity costs and substantial indemnity costs. An award of costs on an elevated scale is justified in only very narrow circumstances – where an offer to settle is engaged or where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.) at para. 28. Substantial indemnity costs is the elevated scale of costs normally resorted to when the court wishes to express its disapproval of the conduct of a party to the litigation. It follows that conduct worthy of sanction would have to be especially egregious to justify the highest scale of full indemnity costs.

[31] I would not characterize Mr. Williams’ conduct vis-à-vis the issues before me as egregious to warrant the increased scale of costs. I reiterate that I am not dealing with enforcement proceedings. This issue is the conduct of this litigation.

[32] He was added as a defendant to the proceedings. This is not a case where Mr. Williams initiated the proceedings. Partial indemnity costs are appropriate.

What is the appropriate quantum of costs?

[33] Having determined that Mr. Williams is liable for the costs on a partial indemnity basis, I now turn to the issue of quantum.

[34] Assessing the appropriate quantum of costs requires a consideration of what is fair and reasonable for the unsuccessful party to pay in the circumstances: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). Under r. 57.01(1) of the Rules, some of the factors that may be considered include: the importance of the issues, complexity of the proceedings, and the reasonable expectations of the unsuccessful party: see Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509, at para. 24.

[35] Mr. Williams does not challenge the time spent or the hourly rates charged as they are claimed by Foxgate and Haldimand.

[36] I have reviewed the dockets submitted by Foxgate. I am dealing with costs and time related to the injunction. The issue of damages remains to be decided. I have deducted time related to drafting the statement of claim, which may still be recovered in the action. I have also deducted time related to enforcement proceedings, together with communications with the Ontario Provincial Police and Attorney General and communications with others about attendance at the site by third parties, as those are not related to the granting of the injunctions.

[37] After making those deductions, and considering the various factors set out in Boucher, as well as the time spent and hourly rates, I fix the costs of Foxgate on a partial indemnity basis in the amount of $60,000 all-inclusive to be paid forthwith by the defendant to Foxgate.

[38] I have reviewed the amount claimed by Haldimand. The hourly rates are reasonable, and the time spent is reasonable. I fix the costs of Haldimand on a partial indemnity basis in the amount of $13,000 all-inclusive to be paid forthwith by the defendant to Haldimand.

Order

[39] The defendant Skyler Williams shall pay to Foxgate its costs on a partial indemnity basis fixed in the amount of $60,000 all-inclusive forthwith.

[40] The defendant Skyler Williams shall pay to Haldimand its costs on a partial indemnity basis fixed in the amount of $13,000 all-inclusive forthwith.

SWEENY R.S.J. Released: March 20, 2023