COURT OF APPEAL FOR ONTARIO
CITATION: Mounted Police Association of Ontario v. Canada (Attorney General) 2012 ONCA 688
DATE: 20121012
DOCKET: C50475
Doherty, Rosenberg and Juriansz JJ.A.
BETWEEN
Mounted Police Association of Ontario/Association de la Police Montée de l´Ontario and B.C. Mounted Police Professional Association on their own behalf and on behalf of all Members of the Royal Canadian Mounted Police
Applicants (Respondents/
Appellants by way of cross-appeal)
and
The Attorney General of Canada
Respondent (Appellant/
Respondent by way of cross-appeal)
Kathryn Hucal and Susan Keenan, for the appellant/cross-respondent
Laura Young, for the respondents/cross-appellants
Ian Roland and Michael Fenrick, for the intervener the Canadian Police Association
Kelly Henriques and John Craig, for the intervener the Mounted Police Members´ Legal Fund
James R.K. Duggan, for the intervener L´Association des Membres de la Police Montée du Québec
Heard: November 22, 2011
On appeal from the judgment of Justice Ian A. MacDonnell of the Superior Court of Justice dated April 6, 2009, with reasons reported at (2009), 96 O.R. (3d) 20.
COSTS ENDORSEMENT
[1] On June 1, 2012, the court rendered its decision in this appeal. The appellant was successful on all issues and the parties made written submissions on the costs of the application and the appeal.
[2] The respondents submit that the court should use its discretion to depart from the usual costs rule on grounds that the respondents were public interest litigants. They argue that the proceedings involved issues of public importance that go beyond the interests of the parties. The respondents ask the court to maintain the application judge´s order granting them costs fixed at $300,000 and to award them additional costs in the amount of $72,942.45 for the appeal. In the alternative, they submit that no costs award be made.
[3] As the successful party, the appellant submits that we should apply the usual costs rule, namely that costs follow the event. The appellant argues that the respondents challenged various provisions of legislation all of which related specifically to the employment of RCMP officers. The appellant requests that costs for the application and the appeal be fixed in the amount of $408,785.75.
[4] No doubt the context of the appeal involved the legislative framework regulating the employment of RCMP members and the respondents had a direct stake in the outcome of the litigation. However, the heart of the appeal related to the scope and application of s. 2(d) of the Charter of Rights and Freedoms. The appeal raised issues of broad public interest that were not directly addressed in previous cases. Moreover, there was a significant development in the jurisprudence after the application was decided. The Supreme Court´s decision in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, was released while this appeal was pending. When the respondents commenced their application and responded to the appeal, their position would have appeared much stronger according to the existing jurisprudence. This is certainly not a case in which a cost award could be justified as a deterrent against bringing meritless claims.
[5] On the other hand, there is no rationale for awarding costs in favour of unsuccessful public interest litigants. Accordingly, the application judge´s costs award is set aside and there will be no costs of the appeal.
“D. Doherty J.A.”
“M. Rosenberg J.A.”
“R.G. Juriansz J.A.