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Ontario Court of Appeal dismissed an appeal from a s. 137.1 dismissal, holding the action failed at the substantial-merit stage and the costs award stood.
The Ontario Court of Appeal dismissed an appeal from the dismissal of an anti-SLAPP motion, holding the communications were about a private employment dispute rather than public interest.
Leave to intervene was granted because the proposed joint interveners demonstrated institutional expertise and an interest in the public policy issue raised by the appeal (whether fundraising by public interest organizations can convert them into de facto parties for costs purposes), their submissions were not duplicative and would be useful without causing prejudice to the parties; the court imposed terms to limit scope, avoid repetition, and preclude costs in respect of the interveners.
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The Federal Court awarded the BCCLA reduced special costs after a Charter challenge was discontinued following Bill C-59, finding the case exceptional but not fully funded or fully successful.
The Court of Appeal allowed the Attorney General's appeal, holding the application judge erred: there was no evidentiary basis to find ss.2(b) and 3(1) of the TFMA engaged s.7 or s.2(a); the application judge failed to apply the two-part s.7 analysis and to identify principles of fundamental justice or evidentiary harms; the read-down was unwarranted; costs were awarded to the Attorney General and ordered payable personally by the executor and beneficiary, not from the estate.
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The Federal Court fixed costs at $675,000, finding the plaintiffs’ litigation conduct and baseless allegations justified enhanced costs rather than public-interest relief.
Defendant was entitled to costs as the successful party; the plaintiff's claim did not amount to public interest litigation warranting a reduction; applying Tariff A with the amount involved assessed at $125,000–$130,000 and a four-day trial, the Basic Scale 2 applies; having considered Rule 77 factors and disbursements, the court fixed an all-inclusive costs award of $25,000 payable by the plaintiff to the defendant.
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The Court held the Applicant did not establish full public interest litigant status though some public interest aspects (beach access/parking) existed; costs follow the result so Respondent is entitled to costs; a lump sum award is appropriate because the tariff would not achieve a substantial but incomplete indemnity in the circumstances; because of the limited public interest component the Court reduced the Respondent’s claimed lump sum by 30%, awarding a total of $38,500 in costs plus $10,214.48 in disbursements for a total of $48,714.48.
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The Court of Appeal ordered each party to bear its own costs after allowing the appeal and reinstating the Human Rights Tribunal’s dismissal of the complaint.
The Court held that the respondent's proceeding did not meet the categories for public interest litigation set out in Odhavji Estate and accordingly the appellants were entitled to costs of the appeal, fixed at $25,000 inclusive of disbursements and HST; the prior trial judgment was set aside and a new trial on the sole issue of excessive force was directed.
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