



COURT OF APPEAL FOR ONTARIO

CITATION: Friends of Toronto Public
    Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 509

DATE: 20200814

DOCKET: C66494

Pepall,
    Tulloch and Benotto JJ.A.

BETWEEN

Friends of Toronto Public Cemeteries Inc. and Kristyn Wong-Tam

Applicants
    (Respondents/

Appellants
    by way of cross-appeal)

and

Public
    Guardian and Trustee
and
Mount Pleasant Group of
    Cemeteries

Respondents
    (
Appellant
/
Respondent
/

Respondents
    by way of cross-appeal)

Ronald G. Slaght, Q.C. and Margaret
    Robbins, for the appellant/respondent by way of cross-appeal, Mount Pleasant
    Group of Cemeteries

Michael S.F. Watson, Rodney Northey
    and Michael Finley, for the respondent/appellant by way of cross-appeal,
    Friends of Toronto Public Cemeteries Inc.

Tim Gleason and Amani Rauff, for the
    respondent/appellant by way of cross-appeal, Kristyn Wong-Tam

Dana De Sante, for the
    respondent/respondent by way of cross-appeal, Public Guardian and Trustee

Heard: In writing

On appeal from the
    order of Justice Sean F. Dunphy of the Superior Court of Justice, dated
    December 31, 2018, with reasons reported at 2018 ONSC 7711, 144 O.R. (3d) 521.

COSTS ENDORSEMENT

[1]

The appellant, Mount Pleasant Group of
    Cemeteries (MPGC), seeks its costs from the respondents, Friends of Toronto
    Public Cemeteries Inc. (FTPC) and Kristyn Wong-Tam. It requests costs of the
    appeal and cross-appeal in the amount of $150,000 and costs of the underlying
    application in the amount of $475,000. Both sums are inclusive of disbursements
    and HST. The appellant does not seek any costs from the Public Guardian and
    Trustee (PGT).

[2]

New counsel on behalf of Ms. Wong-Tam, who are
    not on the record, filed separate costs submissions and asked that this court
    consider them. No issue was taken in reply by the appellant. We have considered
    Ms. Wong-Tams submissions in reaching our costs decision.

[3]

Typically, costs follow the event, or to use
    more contemporary phraseology, the result of the action. As the appellant was
    successful on the appeal and cross-appeal, this principle suggests an award in
    favour of the appellant. However, the respondents resist any such award for three
    principal reasons:


i.

the application was brought solely in the public
    interest and for no personal advantage or gain;


ii.

they were successful on what FTPC describes as
    the fundamental underlying issue in the case, the existence of the statutory
    trust, which was only conceded at the eleventh hour
[1]
and which benefitted the
    appellant; and


iii.

they successfully resisted the appellants
    argument that the respondents had no standing.

[4]

Alternatively, the respondents submit that even
    if FTPC is not a public interest litigant, Ms. Wong-Tam is, and no costs should
    be awarded against her personally.

[5]

We will start by addressing the respondents
    public interest argument and then will turn to the issue of quantum.

Public Interest Status

[6]

The first issue to address is whether the
    application should be characterized as public interest litigation and, if so,
    whether FTPC and Ms. Wong-Tam should be excused from paying costs because they
    were acting in the public interest.

[7]

In considering the public interest issue, we
    begin with the application judges reasons.

[8]

At para. 67 of his reasons, the application
    judge described FTPC. He wrote: [I]n 2013, the Applicant Friends of Toronto
    Public Cemeteries Inc. was incorporated by some members of the Moore Park
    Ratepayers Association that had been involved in the prior interventions
    regarding MPGC. Since its incorporation, a number of others have joined it as
    members although the majority of its members are from the Moore Park area
    surrounding the Mount Pleasant cemetery on its southern boundary. (This
    finding is reflected in part in para. 65 of this courts reasons.) The
    application judge found, at para. 5, that FTPC had about 100 members.

[9]

Ms. Wong-Tam was described by the application
    judge, at para. 5, of his reasons as a Toronto resident who is also the City Councillor
    for the area (acting in her private capacity here).

[10]

The application judge identified the following
    issues to be addressed: the respondents standing to bring the application;
    whether the current directors of MPGC were validly appointed; was MPGC a trust
    and, in particular, a charitable purpose trust; had MPGC exceeded its objects
    as they related to its visitation centre, funeral home and crematoria
    operations; and would the public interest be served by ordering an
    investigation. He found in favour of the respondents on all issues except two. He
    concluded that there was an inadequate evidentiary record to address the issue
    of the crematoria and he decided that the public interest would not be served
    by an investigation. On this last point, he observed that MPGC was not a runaway
    train; there was no basis to conclude that its trustees had acted in bad faith
    or that they had gone rogue, to use his language.

[11]

On the issue of standing, over the objections of
    the appellant, the application judge relied on the public interest status of
    both respondents and granted them standing. The appellant did not appeal his
    decision in this regard, nor did it appeal his determination that MPGC was a
    statutory trust, although this had already been conceded in any event.

[12]

At the very end of his reasons, the application
    judge closed by stating that the respondents had been substantially successful
    in their application and were entitled to their costs. At para. 172, he wrote:
They have not acted for their personal benefit but to
    vindicate an important public interest.
He then sought submissions on
    scale and amount if the parties were unable to reach an agreement.

[13]

The parties subsequently agreed to an award of
    $475,000 in favour of the respondents, which was higher than the partial
    indemnity quantum identified by them.

[14]

The appellant forcefully argues that neither of
    the respondents is a public interest litigant, stating: FTPC was incorporated
    for the specific purpose of pursuing this litigation; FTPC does not rise above
    being an interloper or busybody; it has spread misinformation on MPGC online,
    casting aspersions on this court and its decision with a view to gaining
    control of MPGCs Board; FTPCs post-hearing conduct undermines its assertion
    of public interest status; MPGC is not a governmental body; the issues related
    to historical legislation arose out of a personal concern regarding the
    cemetery in FTPC members neighbourhood; and the issues did not need to be
    litigated.

[15]

As for Ms. Wong-Tam, the appellant submits that
    she entered the litigation to provide standing to FTPC and did so in her
    personal capacity, well aware of her potential exposure for costs, as evidenced
    by the fact that FTPC provided her with an indemnity for any adverse costs
    order. Accordingly, she took steps to protect herself from having to pay a
    costs order herself.

[16]

The court advised counsel that it did not intend
    to consider any post-hearing conduct in its determination of costs and it has
    not done so. Quite apart from the issue of relevance, the information, which
    was of a serious and inflammatory nature, was not contained in any affidavit or
    sworn document.

[17]

Ignoring that issue, there is nonetheless
    significant force to some of the appellants arguments.

[18]

In
Sarnia (City) v. River City Vineyard
    Christian Fellowship of Sarnia
, 2015 ONCA 732, 343 O.A.C. 58, this court
    outlined factors to be considered in determining whether an unsuccessful
    litigant should be excused from paying costs because it was acting in the
    public interest. The factors include the nature of the litigants, whether the
    nature of the dispute was in the public interest, whether the litigation had
    any adverse impact on the public interest, and the financial consequences to
    the parties.

[19]

One could readily conclude that the respondents
    are not public interest litigants. Unquestionably, there is an element of
    NIMBYism (not in my back yard) in this litigation, to use Mr. Slaghts
    language, at least insofar as it relates to FTPC. Residents living near MPGC cemeteries
    in Vaughan, Thornhill, Pickering, Richmond Hill, Brampton, and Oshawa did not
    file any affidavits on the application, even though FTPC asserts now that the
    application was to their benefit. Moreover, it is not evident that the
    application would be to their benefit in any event. MPGC is a not-for-profit,
    non-share capital corporation and a statutory trust. The evidence is replete
    with references to the world-class nature of the appellant and its effective
    stewardship of Mount Pleasant Cemetery. Indeed Ms. Wong-Tam in her costs submissions,
    though quoting from evidence of MPGC, nonetheless references the fact that it
    is one of the pre-eminent cemetery companies in North America. Any benefit derived
    from the hearing of the application would be largely symbolic rather than real,
    particularly given that the appellant conceded that it was a statutory trust
    before the application was argued.

[20]

On the other hand, the appellant did not
    initially concede that it was a statutory trust. The application brought by the
    respondents caused the appellant to eventually concede that it was a statutory
    trust, a factor that imports a public element. In addition, applying the
    relevant
Sarnia

factors, the appellant is financially
    well-resourced and readily able to bear the costs burden imposed by the
    litigation. FTPC represents an amalgam of individual residents (although it asserts
    that it was not formed as part of a local ratepayers association that had
    decided to go in a different direction). No evidence on FTPCs ability to pay a
    costs award was filed as part of its costs submissions. But it was incorporated
    by a group of individuals engaged in the expensive process of litigation. In
    addition, even though the PGT never saw the need to bring any court proceedings
    itself, the respondents application resolved differences between the PGT and
    MPGC. In addition, the PGT supported the application, although not the
    respondents request for an investigation. Access to justice would tend to favour
    treating the respondents as public interest litigants although there is no evidence
    of any impecuniosity or inability to meet a sizable costs award. That said, in spite
    of the PGTs involvement, the legal issues raised were particular to MPGC.

[21]

As for Ms. Wong-Tam, she chose to participate as
    an individual and not in her capacity as a city councillor, stating that
    maintaining public assets in the public realm is a matter close to [her] heart,
    something she has worked on as a public spirited resident of Toronto, and
    because there was a statutory requirement for a second person to apply under
    the
Charities Accounting Act
, R.S.O. 1990, c. C.10, s.10(1). Presumably,
    at least some if not many of the individuals involved would be her political
    constituents, but this is not an argument raised by the appellant. However,
    there is no suggestion that Ms. Wong-Tam had any pecuniary interest in the
    application. Having brought and lost her application against MPGC before the
    Environmental Review Tribunal, her long-standing interest in the appellant is
    unquestioned.  Ms. Wong-Tams counsel advises that she did obtain an indemnity
    for legal costs from FTPC.
[2]
An indemnity suggests that reasonable expectations would contemplate the
    possibility of an adverse costs award. However, neither FTPC nor Ms. Wong-Tam
    submitted any information on its scope, its depth, nor the indemnity itself as
    part of the costs submissions until requested by the court to provide a copy
    and any underlying security. FTPCs counsel then advised that there is no
    executed indemnity agreement.  Rather, there is a draft agreement and an oral
    understanding between FTPC and Ms. Wong-Tam. In addition, there is no
    underlying security.

[22]

The application judge found that FTCP and Ms.
    Wong-Tam qualified as public interest litigants for the purposes of standing
    and that they had not acted for their personal benefit but to vindicate an
    important public interest. While another adjudicator might have decided
    differently, we are unable to conclude that the application judge made a
    palpable and overriding error in his public interest determination.

[23]

Accordingly, we are prepared to accept the
    respondents argument that they are both public interest litigants. This does
    not end the matter, however, as such a conclusion does not automatically preclude
    an adverse costs award: see
Little Sisters Book & Art Emporium v.
    Canada (Commissioner of Customs & Revenue Agency)
, 2007 SCC 2, [2007]
    1 S.C.R. 38, at para. 35; Mark M. Orkin,
The Law of Costs
, loose-leaf,
    2nd ed. (Toronto: Thomson Reuters, 1987), at §219.5.2. In our view, the
    respondents status as public interest litigants does not excuse them from all
    costs consequences in the circumstances of this case, but it is a factor to
    consider when addressing quantum:
Yaiguaje v. Chevron Corporation
,
    2018 ONCA 472, 141 O.R. (3d) 1, leave to appeal refd, [2018] S.C.C.A. No. 255,
    at paras. 87-88. Indeed, in a given case it may be an important factor.

Quantum of Costs

[24]

Turning to the appropriate quantum of costs, we
    are to consider what is fair and reasonable for the unsuccessful party to pay in
    the circumstances:
Boucher v. Public Accountants Council for the Province
    of Ontario
(2004), 71 O.R. (3d) 291 (C.A.). Factors that may be considered
    are outlined in Rule 57.01(1) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, and include the importance of the issues and complexity of the proceedings,
    and the reasonable expectations of the unsuccessful party.

[25]

Dealing first with costs of the appeal, the
    appellant was wholly successful; success was not divided. The issues were of
    significant importance to the appellant and of some complexity. The costs of
    the parties on appeal were substantially similar and, as such, the respondents
    would reasonably expect to pay $150,000 for the appeal as claimed by the
    appellant.

[26]

As for the costs of the application, it is fair
    to infer that given the quantum of the respondents costs on a partial
    indemnity scale of approximately $400,000 for the underlying application,
[3]
the respondents could and
    should have reasonably expected that the appellants partial indemnity costs to
    respond to the application would be comparable. Furthermore, FTPC was
    incorporated for the purpose of pursuing the litigation. At an early stage in
    the application proceedings, the appellant and FTPC entered an agreement for
    security for costs of $75,000 to be paid by FTPC.

[27]

Lastly, the appellant did not appeal the entire
    judgment, including the standing and statutory trust characterizations.

[28]

Having considered these various factors,
    including the issue of public interest, we are of the view that FTPC should pay
    $150,000 on account of the appeal and cross-appeal, and $200,000 on account of
    the application, both inclusive of disbursements and applicable tax.

[29]

Ms. Wong-Tams role in the litigation can fairly
    be described as secondary to that of FTPC.  However, she should not be relieved
    of responsibility for costs entirely. She has an unexecuted indemnity and an
    understanding from FTPC, albeit a company with litigation as its sole purpose. 
    Given her limited involvement, we are restricting her exposure to a modest
    award, relative to the amount claimed, of $10,000 on account of the appeal and
    cross-appeal and making no order as to costs with respect to the application.

[30]

In our view, these are fair and reasonable
    awards in all the circumstances.

S.E. Pepall
    J.A.

M. Tulloch
    J.A.

M.L. Benotto
    J.A.





[1]
The appellant conceded that it was a statutory trust when it filed
    its factum on the application in April 2018.



[2]
Lorraine Tinsley, FTPCs Chair, stated in her cross-examination of
    February 4, 2015, on her affidavit sworn April 6, 2013, that she believed FTPC would
    cover Ms. Wong-Tams costs.



[3]

The parties settled the application costs for an amount of
    $475,000, which exceeded the partial indemnity costs of the respondents.


