On December 19, 2008, on the heels of action at the municipal level, the Greenspace Alliance, represented by Ecojustice, filed an application for Leave to Appeal the award of costs issued by the Divisional Court on December 10.
The application to the Ontario Court of Appeal asserts that the Divisional Court made errors of law, as well as errors of mixed facts and law in awarding costs against the Greenspace Alliance. It misinterpreted the case law on costs involving public interest litigants and erred in finding that there were ‘no overriding public interest matters at stake’ in the litigation.
“At stake in this case,” the application concludes, “is the ability of public interest environmental groups like the Alliance to continue to litigate in the public interest on environmental issues of public importance. The costs award made by Divisional Court against the Alliance impairs this ability, and will have a negative impact on public interest advocacy in Canada.”
A decision whether leave to appeal is granted is expected in about three months.
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UPDATE – Jan 30, 2009
Court papers filed for Leave to Appeal Cost Award – Leitrim
Ecojustice at uOttawa for the Greenspace Alliance, on 22 January 2009, filed documents in support of Leave to Appeal the costs awards endorsed by Ontario Divisional Court last October. The awards arose as a result of an unsuccessful attempt to have a Decision by the Ontario Municipal Board reviewed. The appeal is to the Ontario Court of Appeal.
The 11-page Factum was prepared by Graham Mayeda, Assistant Professor at the Common Law Section in the Faculty of Law, uOttawa, under a pro bono arrangement with the Environmental Law Clinic. Along with it came a 123-page Motion Record and a 248-page Case Book. The Factum is subject to strict rules of length, format, type of argument etc.
Building on the Notice of Motion filed in December, the Factum demonstrates that the Greenspace Alliance is indeed a public interest litigant and it proposes detailed arguments culled from case law that apply. A solid portrait emerges of the Alliance’s work in the public interest over the last ten years, and for the preservation of Leitrim Wetland in particular. Perhaps its most novel argument is that we represent a disadvantaged group, namely “the interests of the environment and protecting plant and animal life.” All deep ecologists amongst us will rejoice in seeing their views put forward! As public interest litigants, we would not be awarded costs in this case, despite having lost at Divisional Court in October.
By way of demonstrating that our litigation was in the public interest, the Factum also shows how wrong the mootness decision of the Divisional Court was that led to the costs award. This would mean, it states, that “a municipality could avoid appeals of its by-laws simply by repealing them from time to time and then re-enacting identical by-laws.” Nonetheless, this appeal is not of the mootness decision but only of the costs award.
The Factum concludes:
“Divisional Court erred in law in awarding costs against Greenspace Alliance. The Alliance is a public interest environmental group litigating an issue of public interest, namely, the protection of environmentally-sensitive wetlands. It raised legal issues before Divisional Court that are not frivolous and which are of public importance. Its members do not have a personal or financial interest in the preservation of the Leitrim wetland.
Moreover, Divisional Court erred in its interpretation of the law regarding costs awards in cases of public interest litigation. It misinterpreted the factors to consider in making such awards set out in Incredible Electronics and St. James, and misapplied them in exercising its discretion to award costs. Furthermore, the case law is still uncertain in Ontario in regard to the proper interpretation of the factors to be considered in awarding costs in public interest cases.
For these reasons, the Greenspace Alliance submits that the Court of Appeal ought to exercise its discretion to grant leave to the Alliance to appeal the decision of Divisional Court on the issue of costs.”
Our appreciation for this work — which could be legal history in the making — goes out once again to Linda McCaffrey and her team at the Clinic, joined by Professor Mayeda and in no small measure accomplished with the assistance of Linda’s law students.
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UPDATE – Mar 21, 2009
Leave to appeal cost award rejected
On March 17, 2009 the Ontario Court of appeal dismissed our application for leave to appeal the Divisional Court’s cost awards. An additional cost of $1,000 to each of the respondents was awarded. The Justices were Doherty, MacPherson and MacFarland. No reasons are issued.
While it was recognized that obtaining leave to appeal a cost award is rare, this outcome is still disappointing.
Please refer to the newly adopted City policy on cost awards to public interest groups and individuals. At least one good thing came out of pursuing this avenue!
