Ontario Court of Appeal confirms public interest status must be considered when awarding costs

Ontario Court of Appeal confirms public interest status must be considered when awarding costs

TORONTO – The Canadian Constitution Foundation (the “CCF”) is relieved that the Ontario Court of Appeal has set aside a large costs award that posed a grave threat to the ability of public interest organizations like the CCF to defend the rights and freedoms of regular Canadians.

The CCF, in a historic partnership with the Canadian Civil Liberties Association and Democracy Watch, jointly intervened in the appeal of a decision by an Ontario Superior Court of Justice judge that would have required another public interest organization to pay $156,462 to Seneca College of Applied Arts and Technology, after that organization lost its application for an injunction against the college’s vaccine mandate. That decision has now been sent back to the motions judge.

The CCF and the other interveners were concerned that if the costs decision was upheld, the organizations might no longer be able to raise funds to assist with public interest litigation that regular Canadians often cannot afford to fund themselves.

In a unanimous decision released Friday by the Honourable Justice Ian Nordheimer, the Ontario Court of Appeal explained that the cost award was “fundamentally flawed” because the judge below failed to make any finding on whether the litigation constituted public interest litigation. The decision confirms that where litigation is in the public interest, certain principles must be applied when considering requests that the unsuccessful party pay the successful party’s costs.

The CCF, CCLA and Democracy Watch were represented jointly by esteemed constitutional lawyer Sujit Choudhry of Haki Chambers.

Mr. Choudhry said he was pleased that the interveners’ arguments appear to have assisted the court in reaching its conclusion that the motion judge failed to apply the test for public interest litigation.

“The decision affirms, in the strongest possible terms, that public interest organizations have a right to fundraise to support cases and to inform the public of those efforts, and that they do not engage in an abuse of process when they do so. These activities promote access to justice for private individuals who seek to hold governments accountable under the rule of law. ” Mr. Choudhry added.

CCF Executive Director Joanna Baron expressed relief after reading the decision.

“This decision is protective of public interest litigation. It clarifies that that public interest litigants may promote and fundraise in support of their litigation. We were pleased to bring this case with a coalition of groups who carry diverse viewpoints but shared a concern about the potential chill this costs award created.” said Ms. Baron.