At its meeting of 13 April 2011, Council asked Legal Services to review the policy on seeking costs from public interest litigants that was adopted in February 2009. The direction to staff was: “That the City Solicitor review the policy on seeking cost awards as it relates to various cases, including the Friends of Lansdowne litigation, and provide Council with available options.” A report came to the Finance and Economic Development Committee (FEDCO) on 6 September, recommending that the 2009 policy be repealed.
The Policy as adopted in 2009 ended up being:
That Council confirm its policy on seeking cost awards after successfully defending its positions against community and resident public interest groups or an individual who is a public interest litigant such that the City will not seek cost awards from community or resident groups or an individual who is a public interest litigant before administrative tribunals and courts unless the case advanced by the community or resident group or an individual who is a public interest litigant can reasonably be considered either frivolous, vexatious, in bad faith or an abuse of process under all of the circumstances of the case, subject to concurrence by CSEDC; and
That community or resident groups or an individual who is a public interest litigant that challenge the City in court also be asked, as part of the litigation, to confirm that they will similarly not seek costs against the City unless the City has breached any of the above noted factors.
The staff report is here. FEDCO spent nearly 2 hours on this item. Listen to the seven public delegations (all arguing against repeal of the policy) and Councillors’ debate here (the item starts at mark 6:41). Then on 14 September Council spent another good half hour on the matter. (The Federation of Citizens’ Associations intervened prior to the Council meeting but that is nowhere discernible on the record; here is their letter.) You can see the video of the Council debate here (the item starts at 32:25). At Committee the vote was 10 to 1, with only Councillor Deans objecting. At Council, the vote was 21 to 3, with only Councillors Deans, Holmes and Chernushenko dissenting. (Excerpts of the written Minutes are here.)
Listening to the tape and watching the video, it is amazing how unfocussed and ill-informed the debates often were, including whether this was or was not “all about Lansdowne.” (The debate took place after the Friends of Lansdowne’s defeat at Superior Court and just after they applied for Leave to appeal; the City claimed to have incurred $1.25 million in litigation cost so far.) A staff report that was not always factual and to the point — as some intervenors did not hesitate to point out — did not help. (No costs would be asked for the Lansdowne litigation to date but if the 2009 policy is repealed then appeal costs could be claimed.)
The main persuasive point seemed to be that the 2009 policy pre-empts what is dutifully the prerogative of a court to determine: Is it a public interest litigant? is the action vexatious, etc.? and what is an appropriate cost award if any.
Besides fine words about extensive consultation in any given case before asking a court to award costs, the repeal of the policy essentially leaves doing so or not to the discretion of the City’s Solicitor.
Few heeded the words of Bob Brocklebank, one of the intervenors (his notes are here), that whether the policy is repealed or not will matter not one whit as far as Council protecting the taxpayer by recovering costs: A community group is typically incorporated and typically has few if any assets. You can’t get blood out of a stone.
If it’s not about money, what is it about then? As the dissenting Councillors pointed out, the answer is chill — yet another risk a public interest litigant must run, in addition to incurring its own cost of pursuing the court route.
Instead of making up its own mind on whether a litigant is acting in the public interest (only if it does not would the City ask a court of costs) or is vexatious, frivolous, acting in bad faith or abusing the process (only if it is would the City ask a court for costs), Council policy now is to leave it all to the discretion of the court, leaving the conditions for asking costs to Legal Services. More governance by bureaucracy, not democracy.
E.D.