Corporation of the City of Brampton, 2026 ONSC 1060

COURT FILE NO.: CV-24-00001878-0000

DATE: 2026 02 23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SRI LANKA CANADA ASSOCIATION OF BRAMPTON HEWAGE, NEVILLE

Applicant

• and -

CORPORATION OF THE CITY OF BRAMPTON

Respondent

RATNAMALALA, Hasaka, for the Applicant

MUIR, Christine and LOCKHART, Sandy, for the Respondent

PHILIPUPILLAI, Geetha for the intervener (National Council of Canadian Tamils (NCCT)

HEARD: In Writing

REASONS FOR JUDGMENT

LEMAY J

1The Applicants in this case are challenging the decision of the Respondent, the City of Brampton, to build a monument in Chinguacousy Park known as the Tamil Genocide Monument (“TGM”). The monument was approved by Brampton City Council in 2022 and construction is complete. The Applicants challenge the City’s authority to recognize a Tamil Genocide and the City’s authority to construct the monument.

2The litigation in this matter has been ongoing since 2024. I have been case-managing this matter since September of 2025. In December of 2025, I granted the City’s motion to strike portions of the Applicants’ pleadings (2025 ONSC 7093) and denied leave to amend. It is now time to fix the costs for the motion to strike.

Background- The Nature of the Motion

3The underlying claim that has been brought by the Applicants is that the decision to recognize a Tamil Genocide is ultra vires the authority of the City and it is a violation of rights under sections 2 and 15 of the Charter. This claim was proceeding to a hearing on the merits when, in materials that were served in reply to the City’s materials, the Applicants raised a series of further issues.

4Those issues were in relation to the Building Code Act, 1992 S.O. 1992, c. 23 (“Building Code”) and the Planning Act, R.S.O. 1990, c. P.13. In essence, there were a number of violations of specific provisions of the Building Code and the Planning Act that were raised in reply by the Applicants.

5The City brought a motion to strike the Reply Affidavit, which I heard and granted on September 24^th, 2025. At that point, I indicated that the Applicants would have to amend their Application to specifically address these issues. The City did not seek costs for the motion to strike the Reply Affidavit.

6The Applicant brought an amended application, adding the Building Code and Planning Act issues. The City opposed the addition of those issues to the claim, but suggested to the Applicants that they could deal with them as preliminary issues at the hearing. The Applicants refused that request, and insisted on cross-examining the City’s Chief Building Office, the City’s Director of Development and Design and a Special Projects Manager.

7Given the significant additional litigation work that these cross-examinations would have produced, the City determined that it wanted to bring a motion to strike these allegations under Rules 21 and 25 of the Rules of Civil Procedure. I granted that motion, struck out portions of the Application, and denied leave to amend.

8In granting the motion, I determined that the Planning Act and Building Code issues were not interconnected with the constitutional issues. I also determined that the Applicants did not have public interest standing to advance these issues. I also found that the issues raised by the Applicants under the Planning Act and the Building Code were without merit.

The Positions of the Parties

9The City argues that the Building Code and Planning Act issues were not public interest litigation, as the Applicants did not have public interest standing to advance those claims. In the alternative, the City argues that even if this was public interest litigation, the costs of the claims under the Building Code and Planning Act should be borne by the Applicants. The City also argues that the costs that it seeks are reasonable, and that a partial indemnity costs award of $15,285.85 inclusive of HST and disbursements should be awarded.

10The Applicants argue that no costs should be payable as the Applicants are public interest litigants. In the alternative, the Applicants argue that the City’s costs are excessive and disproportionate. The Applicants also argue that the City only had limited success in this motion. Finally, the Applicants argue that they are of very limited means and that any costs award should be substantially reduced or eliminated to take this fact into account. As a result, the Applicants suggest either no costs, or an award of costs of $500.00 all inclusive to be paid in installments of $100.00 a month.

Issues

11Based on the foregoing, there are four issues to be determined, as follows:

a) Did the City have limited success?

b) Are the costs sought by the City reasonable?

c) Is this public interest litigation and, if so, should costs be reduced or eliminated?

d) Should the costs award be reduced or eliminated because of the impecuniosity of the Applicants?

12I will deal with each issue in turn.

Issue #1- Did the City Have Limited Success?

13The Applicants argue that the merits of their application still remain to be determined. They also argue the question of whether the NCCT is a terrorist organization remains to be determined as part of the merits of the Application. As a result, the Applicants argue that the City only had limited success on this motion.

14I reject this submission for two reasons. First, the City got what it sought on this motion, which was the striking of all of the claims under the Building Code and the Planning Act. As noted by Pazaratz J. in Scipione v. Scipione, 2015 ONSC 5982, in identifying who is the successful party on a motion, the question to ask is “who got what they asked for?” In this case, it was the City. Having been entirely successful, the City is presumptively entitled to its’ costs.

15Second, striking the allegation of whether the NCCT is a terrorist organization was not something that I was called on to decide on this motion. The fact that it continues as a live issue does not demonstrate that the Applicants had any measure of success on this motion.

Issue #2- The Reasonableness of the Costs Award

16Rule 57.01 sets out the factors that the Court should consider in assessing the costs of an action or a motion. In this case, the most relevant factors (beyond the result of the proceeding) are:

a) The principle of indemnity, including the experience of the lawyer, the rates charged and the hours spent by that lawyer.

b) The amount of costs that an unsuccessful party could reasonably expect to pay.

c) The complexity of the proceeding.

d) The importance of the issues.

17In their submissions, counsel for the City observes that they were not double-charging for time spent, and that they were working relatively efficiently. I do not have detailed dockets for this motion. Normally, that would be a basis for criticizing counsel and/or reducing the quantum of costs sought. In this case, however, Ms. Muir and Mr. Lockhart have only spent a total of twenty-six hours on drafting the motion materials, preparing a factum and arguing the motion. The rest of the time spent was either not charged, or delegated to an articling student, whose costs the City is not seeking to recover. This is an entirely reasonable and supportable amount for the City to have spent on this motion.

18This brings me to the reasonable expectations of the parties. The Applicants suggest a costs award in the sum of $500.00 if costs are to be awarded at all. That is not a reasonable expectation of an unsuccessful litigant.

19Then, the issues were very important to the City. If the Applicant had succeeded on maintaining this claim, then any City resident who was unhappy with a Building Code or Planning Act decision would have a prima facie ability to advance claims in Court over those decisions. In addition, the significant discovery that the Applicants sought would have been very costly to the City. Both of these facts support a higher award of costs.

20Finally, the legal issues had some complexity to them. The Applicants’ position required the City (and the Court) to consider detailed provisions under the Building Code and the Planning Act as well as issues of public interest standing. While the motion itself was not complex, and did not require cross-examination, the legal issues were not simple. This is a factor that suggests that a higher award of costs should be made.

21I am of the view that the costs sought by the City are reasonable in the circumstances and, subject to the other considerations, I would award the City its costs of $15,285.85 inclusive of HST and disbursements on a partial indemnity basis.

Issue #3- Is this Public Interest Litigation? Should Costs be Reduced as a Result?

22The Applicants argue that everything in this file is public interest litigation. They also argue that there should be no, or very limited, costs as a result. I reject both arguments.

23I start with the observation that the underlying litigation about whether the constitution has been violated by the construction of the TGM is clearly public interest litigation. That is an important matter of constitutional jurisdiction and clearly attracts public interest standing. I have noted as much in my reasons (see para. 54).

24However, the Building Code and Planning Act issues are different. As I noted in my reasons, the Applicants are in no different position than any other resident of the City in advancing those issues. Those claims also had no merit. I am not persuaded that the Applicant should be able to use its public interest standing on one set of issues to avoid the costs consequences of raising other meritless claims in the same proceeding. I will now explain why I have come to that conclusion.

25The purpose of public interest standing is to ensure that issues of genuine concern are addressed by the Court. It is also important to ensure that public interest litigants can access the Courts and that onerous costs awards do not act as an impediment to justice. However, the special treatment that public interest litigants receive in addressing the costs of litigation will have its limitations, and a finding of public interest standing does not automatically preclude an adverse costs award: Little Sisters Book and Art Emporium v. Canada, 2007 SCC 2, [2003] 3 S.C.R. 371 at paras. 2 to 5 and para. 35

26While the principles in Little Sisters deal primarily with the payment of advance costs to public interest litigants, the acknowledgement that there are limitations on the exceptional treatment that public interest litigants can expect under the costs regime is equally applicable in this case. Indeed, the Courts have awarded costs, and sometimes significant costs, against litigants who have public interest standing.

27In Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1 (C.A.), the Court considered the question of whether an unsuccessful public interest litigant should be required to pay costs. The Court noted (at para 87):

87I agree with Mr. Zarnett's submission that the fact that this is public interest litigation does not mean that the appellants are immune from the usual costs consequences of an unsuccessful action. This court in its reasons on the review of the security for costs order was dealing with whether it was just to deny the appellants their day in court on the basis of a security for costs order. It did not consider whether the appellants should ultimately be ordered to pay costs.

28The considerations that the Court should consider in determining a costs award in these types of circumstances were articulated in St. James’ Preservation Society v. Toronto (City), (ONSC), as follows:

a) The nature of the unsuccessful litigant;

b) The nature of the successful litigant;

c) The nature of the dispute- was it in the public interest;

d) Has the litigation had any adverse impact on the public interest; and

e) The financial consequences to the parties.

29These criteria have been adopted and applied by the Court of Appeal: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732 at para. 19, Friends of Toronto Public Cemeteries Inc v. Public Guardian and Trustee, 2020 ONCA 509 at para.

30In this case, the successful litigant is a municipality. It is a non-profit organization that is funded with taxpayer dollars. The unsuccessful litigants are an individual and an association who have advanced this type of litigation on behalf of their members.

31This brings me to what is, in this case, the most relevant of the factors: the nature of the dispute. At paragraph 90 of my reasons, I described the Building Code and Planning Act portions of the Application as follows:

90Second, as the City noted, the Applicants appear to have been engaged in a fishing expedition with this portion of the Application. Rather than pointing to specific provisions, the Applicants have made a series of generalized allegations and have sought to engage in significant questioning of City officials to explore the basis for their case. This raises significant concerns that the Applicants are seeking to add the Code and Planning Act issues to this proceeding to make the litigation more complicated for the City.

32In this case, the Applicants were not pursuing a public interest matter. Instead, they were using their public interest standing on the constitutional issues to advance a series of related claims that certainly appear to have been designed to make this litigation more difficult for the City without advancing, in any meaningful way, the adjudication of the underlying constitutional questions. Public interest applicants should not be able to use their public interest standing on one issue to shield themselves from the costs consequences of advancing meritless arguments on other issues that they arise, especially where they do not have public interest standing to advance those arguments.

33In respect of the fourth and fifth factors under St. James, I would make only brief observations at this stage. This was a preliminary motion, so the effect of the decision was relatively narrow. I will deal with the financial consequences to the parties in the next section on impecuniosity.

34In this case, I am of the view that the Applicants were engaged in a fishing expedition and were advancing the Building Code and Planning Act claims primarily for the purpose of making this proceeding more complicated. As a result, having been unsuccessful on the motion, the Applicants should be obligated to pay at least a significant portion of the City’s reasonable costs for this motion.

Issue #4- Impecuniosity

35In their submissions, the Applicants state that “any award should not exceed $500, payable at $100 per month, reflecting the Applicants’ limited means and the public-interest nature of the proceeding.” I have dealt with the public interest nature of the proceeding above.

36The problem with the assertion of impecuniosity is that neither of the Applicants have provided any evidence of their financial means. The only evidence I have in terms of the means of either Applicant is that Dr. Hewage was a former Professor at a University. This is not evidence of an inability to pay the costs sought by the City.

37The Courts have noted on numerous occasions that a party cannot merely claim a financial inability to pay costs. Evidence that there are no assets from which a costs order could be paid is also required: Levant v. Day, 2023 ONSC 768 at para. 18, 10313033 Canada Inc. v. Kechichian, 2021 ONSC 7606 at para. 18.

38Given this lack of evidence, I am not satisfied that the costs award should be reduced to take into account the impecuniosity of either Applicant. That being said, individuals may require time to pay a costs award. As a result, I am prepared to allow some time for the costs to be paid.

Conclusion and Order

39For the foregoing reasons, I am of the view that the Applicants should be obligated to pay a portion of the City’s partial indemnity costs. To that end, I am ordering as follows:

a) The Applicants are to pay the sum of $10,000.00 inclusive of HST and disbursements on account of the City’s costs for this motion.

b) The Applicants are jointly and severally liable for those costs.

c) The Applicants shall pay those costs within one year of today’s date, with the first $1,000.00 being due and payable within thirty (30) calendar days of today’s date.

40I continue to remain seized as the case management judge.