Centre Wellington Citizens’ Coalition (CWCC)

Supporting community participation in democracy

Fact Sheet #2:

A Failure of Democracy:
Background on Court Costs for Public Interest Cases

The Township of Centre Wellington is pursuing its own citizens for court costs incurred during a CWCC Court Challenge. A costs award of this punitive magnitude ($86,000) is unprecedented in Canada. The current divisive public policy issue has great potential to send a chilling message of deterrence to other community groups across the country.

This fact sheet provides information to assist in understanding the legal direction that may well make such awards illegal in future.

1. Canadian Civil Liberties Association (CCLA)

"Township Council ought to forgo a decision to pursue costs against its own citizens," Stephen McCammon, Counsel for CCLA, Toronto

This is a reference to the 100 or so persons who represented a much larger CWCC constituency and took up a court challenge of Council’s hasty public input process before making a decision to approve a slots/raceway development in Elora. Mr. McCammon delivered this clear message to Council at its meeting on August 12, 2002:

"… in the opinion of the CCLA, ordinary citizens who litigate public interest matters in good faith ought not be discouraged by having to pay the costs of the winning side especially when that side is their government and the issue raised contains a reasonable question about decision-making processes. In a democracy, such contributions are more than vital, they are inherently necessary and ought not be needlessly discouraged."

Council was also urged by Mr. McCammon to "get out ahead of the judges," which refers directly to a definitive case, to be heard October 3, 2002 before the Supreme Court of Canada. The court decision will provide national direction for the issue of awarding costs against Citizens’ Groups in public interest disputes.

"You should also know that, in recent years, while there have been some glaring exceptions (notably in the case at hand), a general trend towards costs not being ordered in public interest cases is emerging in this province. In any case, it is the opinion of the Canadian Civil Liberties Association that the Court of Appeal acted hastily and got it wrong in this case. Indeed, I have been told that they made their costs order without hearing or even inviting argument on the subject."

The case in which the CCLA is proactively involved with "intervener" status, (The Estate of Manish Odhavji,et al. v. Detective Martin Woodhouse, et al,) is expected to provide a clear direction that costs ought not to be awarded in cases where citizens legitimately undertake to challenge process and political decisions made by elected and non-elected public officials. Again, in the words of the CCLA:

"Indeed, the [Township of Centre Wellington] Council has an unusual opportunity to get out in front of the Supreme Court of Canada which, in a upcoming case, will be called on to set out a clear, sensitive, and national rule on costs in public interest cases.

So, it is expected and hoped that a decision, to follow the October Supreme Court hearing, could make all such public interest cost awards against citizens’ groups illegal.

2. OMB Costs Issue in Wellesley Township:

One of the concerns about the proposed action of both Township of Centre Wellington and Wellington County Councils is that a precedent will be set which encourages similar punitive action by local governments. The CCLA has argued that such censorship and attempts to limit public discussion must not be tolerated in a free and democratic society. But, this is now beginning to happen.

Wellesley Township Mayor Doug Bergman, Woolwich Observer, August 6, 2002:

"I propose that we seek any cost incurred if we are successful. We feel what we've done is in the best interest of the municipality. If someone wants to take that to task it's going to cost the taxpayers money, so we should try to recover their money, if what we did was in fact right. I think it's quite normal to try to receive your costs if in fact what you did was not wrong. So all of our costs should be recouperated [sic] [from] the appellants, of course."

Here, Mayor Bergman is referring to an issue (unrelated to the issues in Centre Wellington) in which zoning of rural workplace clusters serving the Old Order Mennonite community has aroused sufficient passions in Wellesley Township to be taken to the Ontario Municipal Board (OMB).

Mayor Bergman cites the case in Centre Wellington as a precedent and motivator for his actions. This apparent attempt by the Wellesley Mayor to intimidate his own citizens, sends a "chilling" message to residents and taxpayers. The implicit message of Mayor Bergman appears to be that citizen opposition through proper and legitimate channels may be visited with dire costs and consequences whenever local officials are challenged.

3. Nominal Costs Award in Niagara-on-the-Lake Case

It should also be pointed out that decisions of courts can greatly vary, even in similar cases. Recently a community group in Niagara-on-the Lake alleged that the Town’s Council had acted improperly in a decision to move the Town’s library by holding secret meetings (prior to public meetings) contrary to the Ontario Municipal Act. (See the Superior Court Case "Niagara-on-the-Lake Conservancy Society v. Niagara-on-the-Lake (Town) September 14, 2000 and the associated costs hearing on February 28, 2001 both before Justice J. Taliano). This is similar to the Centre Wellington case, in which the citizens alleged that Council acted improperly by holding a public meeting that did not meet the requirements of the same Act.

In both cases the citizen’s groups lost even though it would appear that the Niagara-on-the Lake situation involved significantly more consultation than was the case in the rushed March 2000 adoption of the raceway/slots facility (from the transcript of the case):

"Various delegations were entertained on the subject of the relocation of the library. On March 22, council passed a resolution postponing the decision on the relocation of the library for a period of three months in order to permit passions to cool."

The Town of Niagara-on-the-Lake sued for its costs of $43,563.86. In contrast with the treatment the Coalition received, the judge awarded only nominal costs of $1,200. The following citations are taken directly from the decision on costs in that case:

"… to reward the Town by ordering the applicant to pay costs of the proceedings is neither fair nor equitable under the circumstances. Nor does it seem right to penalize the applicant for raising matters that involve the public interest. The applicant is a non-profit body whose members work without compensation for the betterment of the community. Their activities have been entirely lawful and high-minded. In that sense, their work should be nurtured and not discouraged."

The judge in this case took the broader view of the requirements of the law, which bears repeating in the context of the Centre Wellington case.

"The Town’s actions must not only be above board but should appear to be above board. When the Town fails to meet the standard, it cannot expect to be rewarded or vindicated when concerned citizens complain about it even in a losing cause."

Centre Wellington Township’s hasty decision on March 30 after the disastrous public meeting of March 29-30, 2001, following receipt of over 1,200 submissions in the previous few days does not meet the standard of "appearance" required by the judge in the Niagara case. There is clear and compelling disparity in the direction given by the courts in these two cases. It should be noted that while the court clearly allowed for collection of costs in the Centre Wellington instance, there was no direction to do so. The judge went on to state that:

"… the Town should not be able to point to the trophy case and boast that cost sanctions will necessarily attach to those who seek to challenge the Town’s authority."

This warning has become reality in the Wellesley case, where the Mayor Doug Bergman threatened to pursue costs if residents went to the OMB and lost. As the CCLA stated in Stephen McCammon’s presentation:

"… we ought not to discourage such participation by whacking ordinary citizens and taking them for costs. It’s the principled thing to do, it’s the right thing to do, and no reasonable ratepayer will hold such wisdom in contempt. Nor will the courts. It is your decision to make. The judges and the lawyers are done with it".

The actions being contemplated by municipal politicians in Centre Wellington and other Ontario communities should be set to one side until clear direction is provided by the Supreme Court of Canada.

For more information contact CWCC co-chairs:

Olga Domjan (519) 846-8532, Harry Panjer (519) 846-9292, Randall Howard (519) 846-0550

Visit our CWCC website at: www.cwcc.info