Case: Stewart v. Toronto (Police Services Board), 2020 ONCA 460
Keywords: Costs; Substantial Indemnity; Public Interest Litigation
During the June 2010 Toronto G20 summit, members of the Toronto Police Services (“TPS”) interact with protestors demonstrating on public property. Mr. Stewart alleges police breach his rights under the Charter. The Trial Judge dismisses Mr. Stewart’s action; the Court of Appeal allows Mr. Stewart’s appeal. By reasons dated April 16, 2020 (summarized by Supreme Advocacy LLP here: https://www.canliiconnects.org/en/summaries/70608) the Court of Appeal
- allows the Mr. Stewart’s appeal;
- grants Charter damages in the amount of $500;
- sets aside the Trial Judge’s award of Costs against him;
- awards Costs of the Appeal in the amount of $20,000; and
- invites the Parties to make written Cost submissions (if they cannot agree on the Costs below). (See para. 1).
The parties cannot agree on costs, hence this July 10, 2020 Ont. C.A. decision.
Mr. Stewart seeks costs of the proceeding below on a substantial indemnity basis in the amount of $114,584.61. The Toronto Police Services Board (“TPS”) seeks its costs of the proceeding below in the amount of $25,000. (See para. 2).
The Court of Appeal orders TPS to pay Mr. Stewart $25,000, inclusive of disbursements and applicable taxes.
Citing Carter v. Canada (Attorney General), 2015 SCC 5,  1 S.C.R. 331, at paras. 137-140, the Court of Appeal provided a helpful summary of the criteria used for awarding special costs on a substantial indemnity basis for “public interest” litigation.
For the Court of Appeal, Carter requires a litigant to satisfy two criteria for an award of public litigation special costs:
- “to demonstrate that his proceeding involved matters of public interest that are ‘truly exceptional’”. (See para. 5);
- to demonstrate “that he has ‘no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds’”. (See para. 6).
With respect to the first criterion, the Court of Appeal determined that Mr. Stewart’s case does not fall within the category of “truly exceptional”:
Mr. Stewart does not satisfy this first criterion. He had an encounter with members of the TPS that he alleged resulted in the violation of several of his rights guaranteed under the Canadian Charter of Rights and Freedoms. Mr. Stewart brought a civil suit seeking a remedy for those violations. But, as the Supreme Court observed in Carter at para. 137, “[a]lmost all constitutional litigation concerns ‘matters of public importance’”. While Mr. Stewart advanced important Charter claims, we do not regard the matters raised in his proceeding as “truly exceptional”, within the meaning of Carter. (See para. 5).
With respect to the second criterion, the Court of Appeal determined that “the pleadings and history of this action show that Mr. Stewart had a personal and pecuniary interest in the litigation”. (See para. 6).
In this case, the Court of Appeal found “nothing in the litigation conduct of the TPS” that merits an award of “elevated costs”. (See para. 9). How then, did the Court of Appeal address partial indemnity costs in light of Mr. Stewart’s success in a matter which contributes to a better understanding of Charter rights and permissible police crowd control tactics? Mr. Stewart’s submissions indicate he incurred costs totaling $87,240.76 for the proceedings below. Given his success in the action, Mr. Stewart was “presumptively entitled to costs on a partial indemnity basis”. (See para. 10).
The Court of Appeal agreed with the argument that a costs award in which Mr. Stewart was required to pay some amount to TPS “would be a harsh result for a case in which an individual successfully enforced his constitutional rights”. (See para. 16). As such, the Court departed from the general application of Rule 49.10(2) as follows:
Although Mr. Stewart’s action did not meet the criteria for an award of public interest litigation special costs, the issues raised by his action will contribute to a better understanding of the interplay between Charter rights and permissible police crowd control techniques. (See para. 19).
The Court of Appeal concluded that Mr. Stewart should receive costs “fixed in the amount of $25,000, inclusive of disbursements and applicable taxes.” (See para. 21).
Counsel for the Appellant: David Charney and Christopher Rapson (Charney Law, Toronto)
Counsel for the Respondent: Kevin McGivney and Jonathan Thoburn (Borden Ladner Gervais LLP, Toronto)
Counsel for the Intervenor (Canadian Civil Liberties Association): Winston Gee and Sarah Whitmore (Tory’s LLP, Toronto)