Litigation, Costs and Public Interest Groups – CCLA Intervening to Clarify the Law

The CCLA, in conjunction with the Canadian Constitution Foundation (CCF) and Democracy Watch, were granted permission to intervene in a case before the Ontario Court of Appeal on an issue of costs. The case arose out of a request by some students at Seneca College to be exempt from the application of the institution’s mandatory vaccination policy. They were unsuccessful and Seneca sought its costs of the proceeding. However, since the students would not be likely to be able to pay the costs, costs were sought against the Justice Centre for Constitutional Freedoms (JCCF), a non-profit organization whose lawyers were representing the students and that had engaged in fundraising activities to support the litigation.  

The Superior Court judge that considered the costs request ordered the JCCF to pay them. Typically, a court will engage in a particular analysis before ordering a non-party, or a party’s lawyer, to pay costs directly. In this case, the Court did not engage in that analysis. It also didn’t consider whether the student’s case was a public interest case, where some different considerations apply to the question of costs. JCCF has appealed the costs order. CCLA, CCF and Democracy Watch were granted permission to intervene on the basis that the case raises broader questions or importance around public interest organizations engaged in litigation and the potential impact of fundraising efforts on costs liability. The hearing took take place on August 28, 2023. 

The court released its decision this week and it is available here. The Court found that “[t]he basis for the costs order is fundamentally flawed.” 

The interveners’ factum is here: Joint lnterveners Factum.pdf  

We are grateful to Sujit Choudhry for his excellent representation of the interveners in this case.