



COURT OF APPEAL FOR ONTARIO

CITATION:
Mounted
    Police Association of Ontario v. Canada (Attorney General) 2012 ONCA 688

DATE: 20121012

DOCKET: C50475

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Mounted Police Association of Ontario/Association
    de la Police Montée de l´Ontario and B.C. Mounted Police Professional
    Association on their own behalf and on behalf of all Members of the Royal
    Canadian Mounted Police

Applicants
    (Respondents/

Appellants by way of cross-appeal)

and

The Attorney General of Canada

Respondent (Appellant/

Respondent by way of
    cross-appeal)

Kathryn Hucal and Susan Keenan, for the
    appellant/cross-respondent

Laura Young, for the respondents/cross-appellants

Ian Roland and Michael Fenrick, for the intervener the
    Canadian Police Association

Kelly Henriques and John Craig, for the intervener the
    Mounted Police Members´ Legal Fund

James R.K. Duggan, for the intervener
    L´Association des Membres de la Police Mont
é
e du Québec

Heard: November 22, 2011

On appeal from the judgment of Justice Ian A. MacDonnell
    of the Superior Court of Justice dated April 6, 2009, with reasons reported at
    (2009), 96 O.R. (3d) 20.

COSTS ENDORSEMENT

[1]

On June 1, 2012, the court rendered its decision in this appeal. The appellant
    was successful on all issues and the parties made written submissions on the
    costs of the application and the appeal.

[2]

The respondents submit that the court should use its discretion to
    depart from the usual costs rule on grounds that the respondents were public
    interest litigants. They argue that the proceedings involved issues of public
    importance that go beyond the interests of the parties. The respondents ask the
    court to maintain the application judge´s order granting them costs fixed at $300,000
    and to award them additional costs in the amount of $72,942.45 for the appeal.
    In the alternative, they submit that no costs award be made.

[3]

As the successful party, the appellant submits that we should apply the
    usual costs rule, namely that costs follow the event. The appellant argues that
    the respondents challenged various provisions of legislation all of which
    related specifically to the employment of RCMP officers. The appellant requests
    that costs
for the application and the appeal
be fixed in
    the amount of $408,785.75.

[4]

No doubt the context of the appeal involved the legislative framework
    regulating the employment of RCMP members and the respondents had a direct stake
    in the outcome of the litigation. However, the heart of the appeal related to the
    scope and application of s. 2(d) of the
Charter of Rights and Freedoms
. The appeal raised issues
of broad
    public interest that were not directly addressed in previous cases. Moreover,
    there was a significant development in the jurisprudence after the application
    was decided. The Supreme Court´s decision in
Ontario (Attorney General) v.
    Fraser
, 2011 SCC 20, [2011] 2 S.C.R. 3, was released while this appeal was
    pending. When the respondents commenced their application and responded to the
    appeal, their position would have appeared much stronger according to the existing
    jurisprudence. This is certainly not a case in which a cost award could be
    justified as a deterrent against bringing meritless claims.

[5]

On the other hand, there is no rationale for awarding costs in favour of
    unsuccessful public interest litigants. Accordingly, the application judge´s costs
    award is set aside and there will be no costs of the appeal.

D. Doherty J.A.

M. Rosenberg J.A.

R.G. Juriansz J.A.


