Court File and Parties

COURT FILE NO.: CV-19-00631627-0000 DATE: 2023-08-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SOPHIA MATHUR, a minor by her litigation guardian CATHERINE ORLANDO, ZOE KEARY-MATZNER, a minor by her litigation guardian ANNE KEARY, SHAELYN HOFFMAN-MENARD, SHELBY GAGNON, ALEXANDRA NEUFELDT, MADISON DYCK and LINDSAY GRAY, Applicants

AND:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Respondent

BEFORE: VERMETTE J.

COUNSEL: Nader R. Hasan, Justin Safayeni, Spencer Bass, Danielle Gallant, Julia Croome and Reid Gomme, for the Applicants S. Zachary Green and Sean Kissick, for the Respondent

HEARD: In writing

ENDORSEMENT AS TO COSTS

[1] On April 14, 2023, I released Reasons for Judgment dismissing this Application (2023 ONSC 2316).

[2] The parties were not able to agree on costs and have delivered costs submissions.

Positions of the parties

a. Position of the Respondent

[3] The Respondent ("Ontario") seeks costs on a partial indemnity basis in the all-inclusive amount of $45,000.00.

[4] Ontario states that it was entirely successful on the Application and, as a result, it is presumptively entitled to costs. It points out that it delivered a costs outline at the hearing seeking $75,000, but that it reduced its request for costs after reviewing this Court's reasons for decision.

[5] Ontario submits that the costs that it is seeking are fair and within the reasonable expectations of the parties in light of: (a) the Applicants' costs outline which sought $157,907.13 in costs on a partial indemnity basis if the Applicants were successful on the Application; and (b) the costs award in the amount of $36,269.19 in favour of the Applicants on Ontario's unsuccessful motion to strike.

[6] Ontario points out that the minor Applicants are represented by litigation guardians who were required by the Rules of Civil Procedure to acknowledge that they had been informed of their liability to pay personally any costs awarded against them or against the minor Applicants. Ontario submits that this is a further factor indicating that a costs order in favour of Ontario is within the reasonable expectation of the parties.

[7] Ontario argues that the Application failed because of certain legal defects and none of the Applicants' seventeen expert witnesses or more than 20,000 pages of record made any attempt to mitigate these legal defects. According to Ontario, the record was needlessly large and the conduct of the litigation was needlessly complex relative to the determinative legal issues.

[8] Ontario concludes its costs submissions as follows:

The legal defects in the Application were evident from the outset and were specifically addressed in Ontario's preliminary pleadings motion. The Applicants resisted that motion and insisted on their "day in court" on a full evidentiary record. It is only fair and reasonable that the Applicants should bear a small measure of the costs imposed on the public in responding to their claims.

b. Position of the Applicants

[9] The Applicants seek costs on a partial indemnity basis in the amount of $96,999.79. In the alternative, they submit that each side should bear its own costs.

[10] The Applicants state that they are youth public interest litigants whose efforts have brought a significant constitutional issue to an adjudication on its merits for the very first time. They argue that this is one of the rare cases where this Court should exercise its discretion to depart from the usual "loser pays" principle. They rely on the case Thompson v. Ontario (Attorney General), 2013 ONSC 6357 ("Thompson") and submit that the factors considered in Thompson apply with equal force in this case.

[11] Among other things, the Applicants state the following in support of their request for costs:

a. This Application was the first time that a court in this country considered either the merits of a constitutional challenge to a government's inadequate response to climate change generally, or the constitutionality of the target adopted by Ontario specifically.

b. The Applicants are public interest litigants with no direct pecuniary or material interest at stake, and the issues raised extend beyond the interests of the Applicants. It was of great importance to the public at large and to the development of the law for this Court to assess fully the Applicants' novel claims on a full evidentiary record.

c. The Applicants mounted a sophisticated constitutional challenge, filing volumes of carefully marshalled material, including credible expert reports, that in sum presented a compelling argument that fundamental rights and freedoms as guaranteed by the Canadian Charter of Rights and Freedoms were being violated.

d. This Court accepted the Applicants' position on a number of key factual and legal matters.

e. The Applicants are seven young people who are supported by lawyers from a non-profit charity and lawyers working at significantly discounted hourly rates. While they never sought an order for interim costs, such an application may well have been successful. The Applicants are of limited financial resources and would not have been able to fund the litigation themselves.

[12] The Applicants point out that their request for costs is limited as they are seeking costs for only three discrete categories: (1) disbursements for experts; (2) some partial indemnity costs relating to cross-examining Ontario's experts; and (3) some partial indemnity costs relating to the cross-examination of the Applicants' experts. They submit that these were areas where they had substantial success because the Court accepted the Applicants' extensive expert evidence on the harms and disproportionate impacts of climate change. They state that they provided a record in proportion to the complexity of climate change science and the stakes of this Application, in the face of an adverse party that ultimately proved unwilling to simply accept the basic leading science related to climate change and its impacts. The Applicants argue that Ontario significantly and unnecessarily increased the costs to prepare for cross-examinations and note that Ontario initially expressed an intention to cross-examine all of the Applicants' seventeen experts.

[13] If this Court finds that the Applicants are not entitled to costs, the Applicants submit that the appropriate award is one for no costs. The Applicants point out that Ontario courts regularly exercise their discretion to shield unsuccessful public interest litigants from adverse costs awards.

Discussion

[14] Ordinary costs rules apply to public interest litigation and should be followed unless the circumstances justify a different approach. However, there are several cases where the Court exercised its discretion not to order an unsuccessful public litigant to pay costs to the winning party. See St. James' Preservation Society v. Toronto (City), 2006 CanLII 22806 at para. 16 (Ont. S.C.J.) ("St. James"); rev'd on other grounds: 2007 ONCA 601.

[15] The following factors should be considered in determining whether an unsuccessful litigant should be excused from paying costs because it was acting in the public interest (see St. James at para. 17 and Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732 at para. 19):

a. the nature of the unsuccessful litigant;

b. the nature of the successful litigant;

c. the nature of the lis – 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.

[16] After considering these factors, I have come to the conclusion that this is an appropriate case to make no order as to costs:

a. Nature of the unsuccessful litigant. The Applicants have no direct pecuniary or other material interest in the proceedings. It is clear from their affidavit evidence that they have a bona fide belief that the litigation is in the public interest and that they have a genuine interest in the matter. They were well suited to bring this litigation. See St. James at paras. 18-21.

b. Nature of the successful litigant. The successful litigant is the Ontario government. As pointed out in St. James (at para. 22), the fact that the litigation involves a government party may make it more likely that an order of no costs will be made as such an order would reflect that the costs foregone by the successful government litigant are costs that ultimately are borne by the public who benefit from such public interest litigation.

c. Nature of the lis – whether it was in the public interest. The litigation involved important questions related to climate change, which is an issue of existential importance according to the Supreme Court of Canada: References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at paras. 167, 171. The litigation addressed new and unsettled issues with respect to Ontario's legislative approach to tackle climate change. The importance of the issues extends beyond the immediate interests of the parties involved. Further, the issues have practical significance to the public at large. There is broader public support for the positions advanced by the Applicant, i.e., that more should be done by Ontario to fight climate change. In my view, the litigation was a valuable supplement to the democratic process. See St. James at paras. 27-31.

d. Whether the litigation had any adverse impact on the public interest. The Applicants have not engaged in vexatious, frivolous, or abusive conduct. The litigation did not have negative effects on the public interest. See St. James at para. 32.

e. Financial consequences to the parties. The case was expensive to present (e.g., numerous experts) and Ontario has a clearly superior capacity to bear the costs of the proceeding. See St. James at para. 33.

[17] I find that all the factors above favour this Court exercising its discretion not to order the Applicants to pay costs to Ontario.

[18] However, I decline to go one step further and to order Ontario to pay costs to the Applicants. As pointed out by Belobaba J. in Thompson, concerns about access to justice and the support of public interest litigation are traditionally dealt with by the Court exercising its discretion not to award costs against the unsuccessful public interest litigant, not by awarding costs to the unsuccessful public interest litigant. Awarding costs to an unsuccessful litigant, even in cases raising important public interest issues, is highly unusual and only permitted in very rare cases. See Thompson at paras. 12-13.

[19] After considering the factors set out in Thompson (at para. 19), I find that this is not one of the very rare cases where the successful litigant should be ordered to pay costs to the unsuccessful litigant. While the Applicants achieved some success on certain issues and this was a "high quality constitutional challenge", it is not accurate, in my view, to describe this litigation as a "first-time challenge". While this case was the first one attacking Ontario legislation in relation to climate change, it was preceded by a number of cases in Canada raising similar arguments regarding the failure to address climate change.

[20] Further, I do not have evidence before me regarding the Applicants' financial resources and how this litigation was funded. Therefore, the Applicants have not established that advance funding would have been granted, in particular that "[t]he party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial": see Thompson at para. 19(vii) and British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. 40.

[21] As a result, I do not grant the Applicants' request for costs.

Conclusion

[22] Taking the foregoing into account, as well as the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I find that it is fair and reasonable not to order costs (i.e., that the parties bear their own costs) with respect to this Application.

Vermette J.

Date: August 8, 2023