Costs: Public Interest Litigation

If you have been reading this blog for the last two months you will have seen reference to the conservation vs. wind energy battle that is playing out in Ontario courts at present. If you haven’t, see here and here.

In relation to the February 20, 2014 appeal (where Ostrander Point GP Inc. (“Ostrander”) was successful in putting the wind energy project back on track) the court asked for written submissions with regard to the issue of costs for that appeal.

Prince Edward County Field Naturalists (“PECFN”) and Alliance to Protect Prince Edward County (“APPEC”) argued that no costs should be awarded as their litigation was in the “public interest” and raised novel issues. Ostrander argued that costs should be awarded in the amount of $150,000.00 ($120,000.00 of which against PECFN, the rest against APPEC).

The court accepted that there was a measure of public interest engaged by the appeals, and that the issues raised were matters that had not previously been considered by the court. However, that was not the end of the decision.

In deciding whether a particular proceeding constitutes public interest litigation, five factors are to be considered:

(1) The nature of the unsuccessful litigant.
(2) The nature of the successful litigant.
(3) The nature of the lis – – was it in the public interest?
(4) Has the litigation had any adverse impact on the public interest?
(5) The financial consequences to the parties.

In response to these five factors, the court found:

“While the outcome of these factors in this case is mixed, overall they do not support a conclusion that this was public interest litigation. First, PECFN and APPEC had a direct and personal interest in the outcome of this litigation. They represent one element of the interests of the residents of Prince Edward County. They clearly have a view about the wisdom of this wind turbine development. They are entitled to pursue that view but not with impunity. Second, Ostrander is a private actor, not a public one. It is more difficult to deny costs to a successful private actor than it is to a public one. The third factor is more favourable to PECFN and APPEC. As we have already said, there is a measure of public interest in this litigation. The fourth factor is more neutral. While there is no serious adverse impact on the public interest from this litigation, there is nonetheless an adverse impact associated with the delay that is occasioned in having a project go forward that has been either directly or indirectly approved by two provincial ministries. Fifth, while undoubtedly Ostrander is better suited financially to absorb the costs of the litigation, that alone is not a reason to deny costs. One of the functions of costs is to ensure that all parties consider the wisdom of pursuing litigation and understand that there are consequences to doing so. PECFN and APPEC chose to pursue this matter before the Tribunal and then chose to pursue it further in this court. They must have been aware that there would be costs considerations engaged by pursuing their appeals in this court. There is no compelling reason to treat PECFN and APPEC any differently than any other party to litigation in that regard. In particular, PECFN and APPEC are not general public advocacy groups whose work elsewhere might be adversely affected by a costs award.”

What the court added, however, was that the five factors also have an impact on the quantum of costs to be awarded. In particular, costs should be fair and reasonable. As there was a measure of public interest involved in the litigation, the court saw fit to reduce the costs sought by two-thirds, resulting in costs awards of $40,000.00 against PECFN and $10,000.00 against APPEC.

The costs are payable within 30 days. To review the costs decision, you can click here.

By James Early