Date: 20100216
Docket: 10-A-1
Citation: 2010 FCA 45
Present: NADON
J.A.
BETWEEN:
METROLINX, operating as GO
TRANSIT
Applicant
and
THE CANADIAN TRANSPORTATION AGENCY,
GLENN STALKER on behalf of THE WEST TORONTO DIAMOND
COMMUNITY GROUP, and THE CITY OF TORONTO
Respondents
REASONS FOR ORDER
NADON J.A.
[1]
The
respondent, Glenn Stalker on behalf of the West Toronto Diamond Community Group
(the “Community Group”) seeks an Order granting it:
1.
An award
of its costs to date for responding to the interim stay and stay motions of the
applicant Metrolinx, operating as GO Transit (“GO Transit”), including the
costs of the cross-examination of Michael Wolczyk, for responding to GO
Transit’s leave application, and for the costs of the within motion fixed at
$15,000 payable by GO Transit forthwith to bakerlaw in trust for the
Community Group and in any event of the cause.
2.
An award
of interim costs in the amount of $25,000 payable by GO Transit to bakerlaw
in trust for the Community Group, in the event that leave to appeal is granted
by this Court.
[2]
Specifically,
the Community Group seeks an Order of costs payable forthwith in the sum of
$15,000 with regard to this motion and to Go Transit’s motion for a stay of
Canadian Transportation Agency decision 507-R-2009 and for leave to appeal. The
Community Group also seeks an Order of interim costs in the sum of $25,000,
payable to its counsel in trust, should leave to appeal be granted by this
Court.
[3]
Leave to
appeal to this Court was granted on February 11, 2010.
[4]
I will
deal first with that part of the Community Group’s motion which seeks an award
of costs payable forthwith. Rule 401 of the Federal Courts Rules
provides as follows:
|
401. (1) The
Court may award costs of a motion in an amount fixed by the Court.
(2) Where
the Court is satisfied that a motion should not have been brought or opposed,
the Court shall order that the costs of the motion be payable forthwith.
[Emphasis
added]
|
401. (1) La
Cour peut adjuger les dépens afférents à une requête selon le montant qu’elle
fixe.
(2)Si la
Cour est convaincue qu’une requête n’aurait pas dû être présentée ou opposée,
elle ordonne que les dépens afférents à la requête soient payés sans délai.
[Non
souligné dans l’original]
|
[5]
In the
circumstances of this case, I cannot see any basis upon which I could conclude
that costs payable forthwith are justified. In other words, there is absolutely
no basis to conclude that GO Transit’s motion for a stay and for leave to appeal
should not have been brought. Consequently, that part of the motion will be
denied.
[6]
I now turn
to that part of the Community Group’s motion which seeks interim costs in the
amount of $25,000.
[7]
The test
for such an award can be found in two decisions of the Supreme Court of Canada,
namely: Little Sisters Book and Art Emporium v. Canada (Commissioner of
Customs and Revenue Agency), [2007] 1 S.C.R. 38, and British Columbia (Minister of Forests) v.
Okanagan Indian Band,
[2003] 3 S.C.R. 371.
[8]
In Okanagan
Indian Band, supra, the Supreme Court, at paragraph 40, sets out the test
which must be met to justify an award of interim costs. LeBel J., writing for
the Court, formulated the test as follows:
40. With these
considerations in mind, I would identify the criteria that must be present to
justify an award of interim costs in this kind of case as follows:
1.
The
party seeking interim costs genuinely cannot afford to pay for the litigation,
and no other realistic option exists for bringing the issues to trial – in
short, the litigation would be unable to proceed if the order were not made.
2.
The
claim to be adjudicated is prima facie meritorious; that is, the claim
is at least of sufficient merit that it is contrary to the interests of justice
for the opportunity to pursue the case to be forfeited just because the
litigant lacks financial means.
3.
The
issues raised transcend the individual interests of the particular litigant,
are of public importance, and have not been resolved in previous cases.
[9]
As I have
not been persuaded that the Community Group cannot pay for this litigation or that
other options are unavailable for bringing the issues to trial, the Community
Group does not satisfy the first prong of the test. In Little Sisters Book
and Art Emporium, supra, the Supreme Court reasserted the test which it had
formulated in Okanagan Indian Band, supra. At paragraph 40 of their
Reasons for the majority, Bastarache and LeBel JJ. make the following remarks
with respect to the first prong of the test:
40.. Second,
the advance costs award must be an exceptional measure; it must be in the
interests of justice that it be awarded. Therefore, the applicant must
explore all other possible funding options. These include, but are not
limited to, public funding options like legal aid and other programs designed
to assist various groups in taking legal action. An advance costs award is
neither a substitute for, nor a supplement to, these programs. An applicant
must also be able to demonstrate that an attempt, albeit unsuccessful, has been
made to obtain private funding through fundraising campaigns, loan
applications, contingency fee agreements and any other available options. If
the applicant cannot afford all costs of the litigation, but is not
impecunious, the applicant must commit to making a contribution to the
litigation. Finally, different kinds of costs mechanisms, like adverse
costs immunity, should also be considered. In doing so, courts must be careful
not to assume that a creative costs award is merited in every case; such an
award is an exceptional one, to be granted in special circumstances. Courts
should remain mindful of all options when they are called upon to craft
appropriate orders in such circumstances. Also, they should not assume that the
litigants who qualify for these awards must benefit from them absolutely. …
[Emphasis
added]
[10]
There is, in
reality, no evidence as to the Community Group’s inability to pay for this
litigation, other than bald statements to that effect. Nor is there any evidence
that it made any attempt to obtain funding or financing so as to allow it to
bring the issues forward.
[11]
I would
also add that I am not satisfied, in any event, that the litigation would not
proceed unless an order of interim costs was made. In effect, the City of Toronto has supported the position
taken by the Community Group and has filed submissions on every issue raised by
these proceedings. In other words, the City of Toronto has taken an active role in these
proceedings and is, for all intents and purposes, defending the rights of the
Community Group.
[12]
Consequently,
it is clear to me that the first prong of the tri-partite test has not been met
and, hence, I need not address the two other prongs. As a result, the Community
Group’s request for interim costs will be denied.
[13]
For these
reasons, the Community Group’s motion for costs payable forthwith and for
interim costs will be dismissed. There shall be no costs ordered on this
motion.
“M.
Nadon”
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