Awarding costs to County, Tecumseth Estates, ‘would have a chilling effect’

New Tecumseth Free Press Online

AWARE Simcoe’s reply to submissions from Tecumseth Estates and the County of Simcoe, which combined seek to recoup upwards of $50,000 in legal bills, suggests the “public interest factors warrant a departure from the practice that costs follow the cause.”

The organization’s lawyer, Michael Fleischmann, cites two previous cases over the past decade, where courts “exercised their discretion to order no costs against a well-behaved public interest litigant.”

Additionally, a ruling issued yesterday in Superior Court of Justice in St. Catharines, which will now come into play here, dismissed an order of costs against a “public interest litigant,” whereby the circumstances are different but many of the same arguments are presented by both sides in this matter.

Mr. Fleischmann’s submission on behalf of AWARE Simcoe argues a cost judgement against the organization, would effectively end the group’s advocacy work. It is run by volunteers, whose only source of revenue is from nominal membership fees.

“The Applicant respectfully submits that no costs should be awarded. To do otherwise would have a chilling effect on further bona fide efforts to bring forward targeted and direct litigation that is in the public interest. It would also put a severe strain on the ability of the Applicant to continue working towards its mandate and participating in the democratic process in Simcoe County. … It is common ground that the Applicant has no assets with which to satisfy a costs award. Pursuit of the Applicant’s twin goals of good governance and environmental protection in Simcoe County are conducted on a shoestring budget that primarily relies upon the volunteer efforts and resourcefulness of its board of directors and members.”

He cites Justice Eberhard’s pre-amble in her ruling against AWARE Simcoe’s temporary injunction application heard August 19, calling the case a “compelling proceeding which engaged issues of environmental concern, the social value of protest, limitations on the rights of ownership of private property, public influence over private property and who is the guardian of public interest.”

Mr. Fleischmann also targets the cost submissions by both Tecumseth Estates and the County as excessive.

“Neither outline breaks out the amount of time that is attributable to each task. The total time spent by the County’s counsel is 78 hours and that of the Developer’s counsel is 88.5 hours. The partial indemnity rates are well in exceedance of half of counsels’ full rates.

“For comparison, Applicant’s counsel has provided an outline with a total time expenditure of 67.2 hours (given that the matter was pro bono, hourly rates are not included). This is despite the fact that it had to deal with the submissions of both Respondents. Given the substantial involvement of senior counsel for both Respondents, a substantial efficiency saving should have been realized by them. A total of 50 hours at a partial indemnity rate of $200 is more appropriate for each of the Respondents. With taxes and disbursements, a total adverse costs award of $25,000.”

It’s noted that a fundraising effort on behalf of AWARE Simcoe’s application for a judicial review of the process which led to approval last winter of a special permit issued to Tecumseth Estates to clear about 30 acres of woodlot on its 9th Line property, has netted about $5,205. And it’s noted, if the “Court finds impropriety in the Applicant’s conduct, which is strenuously denied” it should be no more than $5,000 in total.

With all the submissions now filed, including an amendment this morning to factor in the latest court decision as referenced above, it’s now a waiting game for the Justice’s decision.