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Appeal Court Dicta

Civil Litigation - Costs - Impecuniosity

. South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.

In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considered a costs issue, here in a leave to appeal motion:
[5] The moving party submits that it should be considered a public interest litigant, that it has no assets, and that, if unsuccessful, no costs should be awarded against it.

[6] I am not persuaded that the moving party is a public interest litigant in accordance with the test set out in CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.), at para 164. The moving party is a neighbourhood association opposing development applications in its neighbourhood. Its members are directly impacted by the proposed development. While stating it is raising important planning issues, it also acknowledges in its factum that it is essentially arguing “not in our backyard.”

[7] That said, I accept that, as a neighbourhood association, it has little to no assets. This is a relevant factor in my assessment and will reduce the quantum of costs ordered.

[8] Overall, I find costs of $10,000 to be appropriate. Therefore, the moving party shall pay costs of $10,000 to the Kingsett responding parties. No costs are ordered for or against the City of Toronto, which did not make any submissions on the motions.
. Lee v. Padathe

In Lee v. Padathe (Div Court, 2023) the Divisional Court considered the role of impecuniousity in costs orders:
[30] Ms. Lee sought costs of $17,471.25. This amount is well in excess of a reasonable request for a motion of this type. While I appreciate that Ms. Lee has not been paid rent, I also take into account that increasing the rent by over 50% could be expected to lead to severe difficulty for Ms. Kallikattumadathil. Considering this factor, as well as Ms. Kallikattumadathil’s financial circumstances, I order nominal costs of $1,000. Ms. Kallikattumadathil shall pay costs of $1,000 to Ms. Lee.
. Anderson v. Alberta

In Anderson v. Alberta (SCC, 2022) the Supreme Court of Canada considered rules around costs-funding by government parties of public interest litigation in the event of 'impecuniosity' of a party. Here, the funding applicant was a native band but the principles may be adaptable to public interest litigation generally [paras 16-52].

. Church of Atheism of Central Canada v. Canada (National Revenue)

In Church of Atheism of Central Canada v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the issue of the losing party's impecuniosity under the Federal Court Rules:
[15] Further to the parties’ submissions regarding the Appellant’s financial circumstances and the payment of costs, in Leuthold v. Canadian Broadcasting Corp., 2014 FCA 174, at paragraph 12, the Court stated the following:
12. Ms. Leuthold argues that, having regard to her financial circumstances, an order for costs of $80,000 is punitive. It is true that an impecunious claimant with a meritorious claim should not be prevented from bringing his or her claim by an order for security for costs, or advance costs: see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at paragraph 36 and following. However, once a matter has proceeded to trial and judgment has been rendered, a party's impecuniosity is not a relevant factor in the assessment of costs. The person entitled to costs has had to incur the costs of proceeding to trial and has the right to be compensated within the limits prescribed by the Rules of Court. Issues of enforceability are distinct from issues of entitlement.
[16] In Latham v. Canada, 2007 FCA 179, at paragraph 8, the Assessment Officer stated the following regarding the issue of financial hardship:
8. The existence of outstanding appeals does not prevent the Respondents from proceeding with these assessments of costs: see Culhane v. ATP Aero Training Products Inc., [2004] F.C.J. No. 1810 (A.O.) at para. [6]. In Clarke v. Canada (Attorney General), [2005] F.C.J. No. 814 (A.O.), the Applicant (an inmate), in arguing before me that his limited resources coupled with the potential amount of assessed costs would interfere with his rehabilitation, correctly conceded in my view that both capacity to pay and likelihood of satisfaction of the assessed costs are irrelevant in the determination of issues of an assessment of costs. That is, I cannot interfere with the exercise of the Court's Rule 400(1) discretion which established the Respondents' right for recovery here of assessed costs from the Applicant/Appellant. I do not think that financial hardship falls within the ambit of "any other matter" in Rule 400(3)(o) as a factor relevant and applicable by an assessment officer, further to Rule 409, to minimize assessed litigation costs. Self-represented litigants and litigants represented by counsel receive the same treatment relative to the provisions for litigation costs: see Scheuneman v. Canada (Human Resources Development), [2006] F.C.J. No. 1278 (A.O.). The Courts here made their findings concerning entitlements to costs: I have no jurisdiction to interfere.
[17] In addition, in Carlile v. Canada, [1997] F.C.J. No. 885, at paragraph 26, the Assessment Officer stated the following with regards to equitable assessments of costs:
26. Taxing Officers are often faced with less than exhaustive proof and must be careful, while ensuring that unsuccessful litigants are not burdened with unnecessary or unreasonable costs, to not penalize successful litigants by denial of indemnification when it is apparent that real costs were indeed incurred. This presumes a subjective role for the Taxing Officer in the process of taxation. My Reasons dated November 2, 1994, in T-1422-90: Youssef Hanna Dableh v. Ontario Hydro cite, [1994] F.C.J. No. 1810, at page 4, a series of Reasons for Taxation shaping the approach to taxation of costs. Dableh was appealed but the appeal was dismissed with Reasons by the Associate Chief Justice dated April 7, 1995, [1995] F.C.J. No. 551. I have considered disbursements in these Bills of Costs in a manner consistent with these various decisions. Further, Phipson On Evidence, Fourteenth Edition (London: Sweet & Maxwell, 1990) at page 78, paragraph 4-38 states that the "standard of proof required in civil cases is generally expressed as proof on the balance of probabilities". Accordingly, the onset of taxation should not generate a leap upwards to some absolute threshold. If the proof is less than absolute for the full amount claimed and the Taxing Officer, faced with uncontradicted evidence, albeit scanty, that real dollars were indeed expended to drive the litigation, the Taxing Officer has not properly discharged a quasi-judicial function by taxing at zero dollars as the only alternative to the full amount. Litigation such as this does not unfold solely due to the charitable donations of disinterested third persons. On a balance of probabilities, a result of zero dollars at taxation would be absurd.
[18] Utilizing the Leuthold and Latham decisions as guidelines, they have provided clarification that Assessment Officers cannot consider the impecuniosity of a party in an assessment of costs. The changes in the Appellant’s financial circumstances that have occurred since the COVID-19 pandemic is not an issue that I am able to consider as an Assessment Officer. In addition, I am unable to consider the Appellant’s request that the costs payable to the Respondent be reduced as an alternative to the parties’ inability to reach an amicable agreement. Any possible reduction in the Respondent’s costs will be based on the facts pertaining to each assessable service and disbursement that has been claimed and will not be based on the Appellant’s possible incapacity to pay those costs. Utilizing the Carlile decision as a guideline, the assessment of the Respondent’s costs will be conducted in such a manner as to not penalize the Respondent by the "“denial of indemnification when it is apparent that real costs were indeed incurred”" but will also ensure that the Appellant is "“not burdened with unnecessary or unreasonable costs”".


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