Ontario Superior Court of Justice

Court File No.: CV-20-00649404-0000
Date: 2025-05-02

BETWEEN:
Ann Toussaint, Appointed Representative of the Estate of Nell Toussaint, Deceased, for the Purposes of this Proceeding, Plaintiff
– and –
Attorney General of Canada, Defendant

Appearances:

• Andrew Dekany, for the Plaintiff
• David Tyndale & Asha Gafar, for the Defendant
• Yin Yuan Chen and Martha Jackman, for the Proposed Intervenors: Charter Committee on Poverty Issues, Canadian Health Coalition, FCJ Refugee Centre, and Madhu Verma Migrant Justice Centre

Heard: In writing

Justice: Panagiota (Penny) Papageorgiou

Costs Endorsement

Overview

[1] I heard and decided a motion for intervention as well as other ancillary matters.

[2] The motion was originally returnable on September 9, 2024. On September 5, 2024, plaintiff’s counsel proposed to the Attorney General of Canada (“Canada”) in writing that the portion of the motion seeking an exemption from mandatory mediation be adjourned until after the completion of the documentary and oral discovery. Canada rejected this on the same day.

[3] Then, on the initial return date of September 9, 2024, Canada sought an adjournment which was granted to October 10, 2024.

[4] The plaintiff succeeded in her motion to be exempted from mandatory mediation. I adjourned the plaintiff’s motion to permit it to disclose productions and discovery information to intervenors and to academics, experts and prospective experts to assist with the litigation.

[5] The plaintiff seeks costs of the motion.

Costs Request

[6] In her summary of her costs claim, the plaintiff indicates that she is entitled costs on a substantial indemnity basis from September 5, 2024. She claims $22,994.25 in fees, $9,706.88 in disbursements related to the witnesses, Mr. Porter and Professor Young, and $3,536.62 in HST. The $22,994.25 is composed of $12,140.25 in partial indemnity fees up to September 10, 2024, and substantial indemnity fees in respect of the period between September 10, 2024, and October 10, 2024.

[7] The plaintiff’s costs outline attached did not separate out the portion of the motion that addressed the disclosure of productions and discovery information to intervenors and to academics, experts and prospective experts to assist with the litigation but indicated that 50% of the time was spent on the successful motion. She has also included in the fees portion of her claim for costs the time that plaintiff counsel spent when Canada chose to cross-examine Mr. Porter and Professor Young on their affidavits pursuant to s. 39.02(4)(b).

[8] The plaintiff also seeks her costs of preparing her cost submissions in the amount of $1,296 plus $168.48 on a partial indemnity basis or on a substantial indemnity basis.

Scale of Costs

[9] The claim for costs at an elevated scale is based upon the plaintiff’s offer. Here the plaintiff says that she is entitled to substantial indemnity costs from September 5, 2024, because of her written offer to adjourn that portion of the motion until after discovery.

[10] There was no rule 49 offer related to the mediation motion. Even though the plaintiff had made a written offer to settle whereby she would adjourn the motion until after discovery, the parties had to attend in any event because of all the motions before the court. The materials had been prepared and the argument on this issue was brief. Even though the court has some discretion to take a non-rule 49 offer into account (Villeneuve v. Scott), I decline to do so in this case since the offer itself was not even much of a concession. All it did was change the timing of the motion. Indeed, arguing the motion at a separate and later time would likely have increased costs and it was more efficient to have it dealt with at the time of the main motions.

Quantum of Costs

[11] Pursuant to s. 131(1) of the Courts of Justice Act, RSO 1990, c C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure, RRO 1990, Reg 194 sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier, para 4; Boucher v. Public Accountants Council for the Province of Ontario, para 26; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, para 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, para 5.

Additional Costs Because of Canada’s Adjournment Request

[12] Given the adjournment requested by Canada and granted, the plaintiff did waste the time preparing for and attending the September 9, 2024 hearing.

Apportionment of Costs

[13] I also agree that apportioning the costs between the two motions is appropriate.

Importance of the Matter

[14] The matter was important to the plaintiff. Although the motion to be exempted from mandatory mediation is not complex, it is the context of a complex matter where the details of the ins and outs of the case would have to be reviewed and considered for the purposes of the motion. The matter has been proceeding in the courts for almost 15 years with various proceedings both in Canada and internationally.

Disbursements Related to Mr. Porter and Professor Young

[15] I also reject Canada’s argument that there should be no costs awarded in respect of Mr. Porter and Professor Young’s affidavits. Here Canada argues that expert evidence was not necessary or helpful. In particular, it says I should decline to award costs because their evidence expressed opinions on the very issue that I was required to decide: R. v. Prasad, 2024 ONCA 601; R. v. J.(J.L.), 2000 SCC 51.

[16] I disagree.

[17] Mr. Porter is the Executive Director of the Social Rights Advocacy Centre, a Maytree Fellow and a human rights consultant. He had acted as a co-representative of the late Nell Toussaint in her complaint and he was involved in ongoing research and advocacy to encourage Canada to agree to implement the Human Rights Committee’s decision. His affidavit described the significant attempts that have already been made to resolve this matter by way of treaty body review procedures, the Universal Periodic Review of Canada and through follow up procedures at the UN Human Rights Committee. He provided evidence that extensive attempts have already been made to resolve issues in this action with Canada through UN mechanisms without success. These processes have engaged the highest levels of the federal government and the most authoritative United Nations human rights bodies, including the UN Human Rights Council, the UN Human Rights Committee, and the UN Committee on Economic, Social and Cultural Rights.

[18] Mr. Porter signed an expert certificate but he did not provide any opinion in his affidavit. He does not even use the word “opinion” in his affidavit. Rather, he provided fact evidence related to the steps that had already been taken to try to resolve this matter, steps of which he was aware because he was involved in these steps. As he said when cross-examined, although he had been the plaintiff’s advocate, what he did in his affidavit was provide information to the court about the significant efforts already made to attempt to resolve this case. The delay occasioned by mediation that does not lead to settlement can delay matters and the concern is the larger implication in respect of irregular migrants who have unresolved and untreated, and potentially life altering consequences during that period of delay.

[19] This evidence was of particular relevance to the issues related to whether the parties had already engaged in a form of dispute resolution and the plaintiff’s argument that mediation will not resolve the considerable difference between these parties. That is, the plaintiff’s position is and always has been that a systemic solution for all parties similarly situated is required. Canada’s position is that this kind of claim will never be accepted, and that was also plain at the hearing before me.

[20] Canada did not raise any argument or cite any law that holds that an expert or professional fact witness cannot be remunerated for their time. Mr. Porter is a professional witness and the plaintiff drew upon his professional expertise and direct knowledge of the complicated events in this matter. In practical terms, the preparation for giving evidence where the witness has been involved in complex matters, and the time expended by witnesses like Mr. Porter, may far exceed the civic duty to give evidence. While everyone who is subpoenaed or examined as a witness pursuant to r. 39.02 must attend and provide evidence, there is no duty to meet with counsel for the purpose of preparation. It was reasonable to obtain his evidence in the way the plaintiff did in advance on the basis that he was remunerated rather than examine him as a witness pursuant to r. 39.02.

[21] Compensating the plaintiff for this disbursement is consistent with the purpose of costs which is intended to compensate for the reasonable expenses necessarily incurred on behalf of the successful party.

[22] Mr. Porter’s fee is $2,373 on a partial indemnity basis for his affidavit (inclusive of HST) and $1,245.82 for attending at cross-examination (also inclusive of HST).

[23] Ms. Young is a professor of law with expertise in constitutional law, public law and social justice. She did provide an opinion.

[24] Ms. Young set out the context for some of the issues and set out a detailed background as to why this matter requires adjudication in the public interest to establish a binding precedent, as opposed to a settlement through mediation. Her affidavit reflected research on and work with Charter claimant groups. She set out her opinion that those impacted all too often do not have the ability to litigate Charter remedies, which is why a case where these matters are adjudicated and why a court precedent is important. Her opinion is that translation of this case into a narrow-individualized frame of rights is insufficient. That is, attempting to resolve rights claims solely as individual claims fails to grapple with the larger alleged systemic issues that affect a wide range of people, not just the plaintiff. She indicated her view that failing to litigate matters like these and instead resolving them on a case-by-case basis, allows governments to evade accountability under the Charter.

[25] Ms. Young’s affidavit addressed access to justice, the rule of law, public accountability, social justice and the impact of this case on some of the most marginalized and vulnerable people in Canadian society including women, racialized individuals, those living in poverty, those with disabilities and those whose immigration status is irregular. While courts are certainly familiar with these concepts and adjudicate them often, that does not mean that expert evidence tailored to the kind of case and issue, and setting out the specifics related to certain groups, is not of assistance within the context of specific issues raised.

[26] When cross-examined about whether her opinion applied to all Charter cases, she said that was not her position and elaborated why it was her opinion in this particular case:

…but my point here is that specific to the context and the circumstances of the claimant involved in this case, there is an added emphasis that needs to be understood that these rights have particular salience to those who most need access to Charter rights because of their marginalized and disempowered status in Canadian society….

So I am referencing a sector, a group of those resident in Canada who are among the most marginalized and the most disempowered, and it is my expert opinion that Charter rights are most significant, of telling importance for this group, that indeed, they are the ones in Canadian society who have one of the most acute needs to have judicial consideration of the extent and import of the rights they have under the Charter….

[27] She also described the distinction between positive and negative rights, cases that left open the possibility of the recognition of positive rights as well as the views of academics that the distinction between positive and negative rights is condemned. It is her view that because of the importance of this matter, they deserve full judicial consideration and this case in particular provides that opportunity.

[28] I found Ms. Young’s affidavit evidence of assistance because it was imbued with research of which she was aware and could attest to because of her expertise in the area of social justice.

[29] Ms. Young’s total fee on a partial indemnity basis was $4,050 and did not charge HST.

[30] Furthermore, with respect to the time spent cross-examining these witnesses, if Canada’s argument is that these only contained inadmissible expert evidence that could be of no assistance, then it should have simply not cross-examined. Having chosen to do so, it cannot take the position that the plaintiff is not entitled to the costs under r.39.02(4)(b) for having attended at the cross-examination. In any event, I found the evidence of assistance.

Court Challenges Project

[31] The plaintiff is supported by the Court Challenges Project, which is another reason why Canada says that she should not receive costs. The plaintiff stated that she received limited funding and that the arrangement is protected by solicitor and client privilege. She submits that this is similar to cases funded by Legal Aid, and that this court should assess this case as if the Court Challenges Program were not involved at the normal hourly rates of the lawyers: Pascal v. Mostafev, 2015 ONCJ 721, para 14 and cases summarized in R. v. Singh, 2014 ONSC 2848.

[32] I agree with the plaintiff’s submission regarding the applicability of the principles in the above cases to cases funded by the Court Challenges Project. Lawyers who take this kind of work often do so at reduced rates. It certainly does not purport to pay all costs associated with a proceeding and a proceeding of this nature will have significant costs. Notably, even though the plaintiff was funded by the Court Challenges Project, Perell J. awarded the plaintiff $92,000 in respect of the motion to strike: Toussaint v. Canada, 2022 ONSC 5851.

Cost of Preparing Cost Submissions

[33] Regarding the cost of preparing the cost submissions, neither the plaintiff nor Canada provided any law on whether these are appropriate. Therefore, as the burden is on the plaintiff, I do not award this.

Unreasonableness of Quantum?

[34] Canada says that no or minimal costs should be awarded because the amounts claimed are “outrageously excessive.” However, Canada did not provide its own bill of costs and so the court is left with the plaintiff’s time and no basis to compare it to what a reasonable amount of time asserted by Canada would have been. If Canada wanted to challenge the time as not being within its reasonable contemplation, or as being unreasonable, then it should have provided its own time.

Section 131 of Courts of Justice Act

[35] With respect to all of the arguments raised, I point out that s. 131 of the Courts of Justice Act sets out a broad discretion:

Costs
131 (1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).

Calculation

[36] In terms of the calculation, the amount claimed by the plaintiff is partially composed of substantial indemnity costs which I have not granted. As a result, I have utilized the schedule attached to the summary.

[37] The schedule attached to the cost submission for both motions is $33,538.96 inclusive of HST. One half of this amount is $16,769.48.

[38] With respect to amounts paid to Mr. Porter and Ms. Young, the total amount is $7,668.82 inclusive of HST. The fees and the amounts for their reports totals of $24,428.30.

[39] In my view, the costs claimed by the plaintiff were incidental to a step in this proceeding, they were reasonable, and I award them in my discretion payable within 14 days.

Panagiota (Penny) Papageorgiou
Released: May 2, 2025