Ecojustice at uOttawa for the Greenspace Alliance, on 22 January 2009, filed documents in support of Leave to Appeal the costs awards endorsed by Ontario Divisional Court last October. The awards arose as a result of an unsuccessful attempt to have a Decision by the Ontario Municipal Board reviewed. The appeal is to the Ontario Court of Appeal.

The 11-page Factum was prepared by Graham Mayeda, Assistant Professor at the Common Law Section in the Faculty of Law, uOttawa, under a pro bono arrangement with the Environmental Law Clinic. Along with it came a 123-page Motion Record and a 248-page Case Book. The Factum is subject to strict rules of length, format, type of argument etc.

Building on the Notice of Motion filed in December, the Factum demonstrates that the Greenspace Alliance is indeed a public interest litigant and it proposes detailed arguments culled from case law that apply.  A solid portrait emerges of the Alliance’s work in the public interest over the last ten years, and for the preservation of Leitrim Wetland in particular.  Perhaps its most  novel argument is that we represent a disadvantaged group, namely "the interests of the environment and protecting plant and animal life." All deep ecologists amongst us will rejoice in seeing their views put forward! As public interest litigants, we would not be awarded costs in this case, despite having lost at Divisional Court in October.

By way of demonstrating that our litigation was in the public interest, the Factum also shows how wrong the mootness decision of the Divisional Court was that led to the costs award.  This would mean, it states, that “a municipality could avoid appeals of its by-laws simply by repealing them from time to time and then re-enacting identical by-laws.”   Nonetheless, this appeal is not of the mootness decision but only of the costs award.

The Factum concludes:

“Divisional Court erred in law in awarding costs against Greenspace Alliance. The Alliance is a public interest environmental group litigating an issue of public interest, namely, the protection of environmentally-sensitive wetlands. It raised legal issues before Divisional Court that are not frivolous and which are of public importance. Its members do not have a personal or financial interest in the preservation of the Leitrim wetland.

Moreover, Divisional Court erred in its interpretation of the law regarding costs awards in cases of public interest litigation. It misinterpreted the factors to consider in making such awards set out in Incredible Electronics and St. James, and misapplied them in exercising its discretion to award costs. Furthermore, the case law is still uncertain in Ontario in regard to the proper interpretation of the factors to be considered in awarding costs in public interest cases.

For these reasons, the Greenspace Alliance submits that the Court of Appeal ought to exercise its discretion to grant leave to the Alliance to appeal the decision of Divisional Court on the issue of costs.”

 

Our appreciation for this work -- which could be legal history in the making -- goes out once again to Linda McCaffrey and her team at the Clinic, joined by Professor Mayeda and in no small measure accomplished with the assistance of Linda's law students.

Erwin Dreessen
30 January 2009