Divisional Court Costs Award Against Pieters Excessive

     Public policy in Ontario has chosen to dispsense with the concept of indemification for costs in human rights matters.  Neither complainants or respondents are entitled to indemnification for the expenses they incure in prosecuting or defending human rights complaints.  Policy makers suggest that this departure from the general rule in civil litigation that the loser indemnifies the winner for the cost of the litigation creates an inexpensive avenue of redress to complainants.  The Divisional Court has often recognized and upheld this policy in its adjudication of judicial review applcations involving human rights matters. 

     This laudable public policy may have been overlooked in the case of Pieters  v.  Peel Law Associaiton 2012 ONSC 1048 when the Divisional Court ordered African-Canadian lawyers Selwyn Pieters and Brian Noble to pay costs of $20,000 to the Peel Law Association.  The quantum of costs awareded here is excessive when compared to like cases decided by the Divisional Court and when one considers that these costs were only to indemnify the successful party and not punish Mr. Pieters and Mr. Noble.  In Audmax  v.  OHRT 2011 ONSC 315 the employer successfuly sought judicial review of a Tribunal finding of religious discrimination and was awareded $10,000.  In Shaw  v.  Phips 2010 ONSC 3884  the Toronto Police Services Board and P.C. Shaw unsucessfuly sought judicial review of a Tribunal finding of liability for racial discrimination and a mere $2,000 was awarded to Mr. Phips.  In a further unsuccessful appeal to the Court of Appeal in Shaw  v.  Phips no costs were ordered "on the understanding of the parties." Indeed, a review of the Divisional Court jurisprudence on costs overall suggests that the parties are typically afforded an opportunity to agree on the issue themselves.

     Unlike the appeal of a trial matter, most judicial review applications have no transcript evidence and are very straight-forward.  Typically the application record for a moving party like the Peel Law Association consists of a Notice of Application.  The Tribunal is obligated to file its record with the Divisional Court.  Each party files a factum and a Book of Authorities.  There was no transcript of the proceedings before the HRTO.  Accordingly, based on my close to twenty years of experience in litigating matters like this a reasonable bill of costs on this application would be the following:

           1     Preparation of Notice of Application

                  - review evidence at hearing
                  - review decision - identify errors
                  - review case law
                  10 hrs

          2.     Complile application record
                   1 hr

          3.     Draft factum and Book of Authorities
                   15 hrs

           4.     Review opposing factum etc.
                   3 hrs

          5.     Prep for hearing -
                     2 hrs

          6.       Attendance
                      2 hrs     

Total:  33 hrs @ $300 = $9,900 + HST = $11,187

Commentary & Analysis:

      The adjudication of costs is an important matter.  The adjudication of costs on judicial review applications involving human rights is - in my view - an even more serious matter.  Because human rights legislation is remedial and quasi-constitutional courts must be very careful not to do anything that would make these remedial forums unaccessable to the people.  If public policy in Ontario has seen fit to depart from the standard costs model in human rights matters before the Human Rights Tribuanl of Ontario this purpose is defeated if courts do not carefully scrutenize the costs demands put forward by parties in judicial review applications involving those decisions at Divisional Court.  Based on the above-noted Bill of Costs the successful party ought reasonably to have expended approximately $10,000 on the proceeding.  An award of costs on an application of this nature ought to be on a party-party scale and not full indemnification.  The jurispurdence is clear that solicitor-client or substantial indemnity costs are for exceptional circumstances.  There was nothing exceptional from a costs perspective about this judicial review application.   The quantum of costs awarded appears to be enough to indemnify the Peel Law Association for the proceedings before the Tribunal as well.

Note:  This piece is written to draw attention to an issue of public importance, namely, the proper adjudication of costs in civil proceedings involving human rights claims and the fact that costs award can close the door to our courts to the people who fund them.

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