On April 2, the Divisional Court made a ruling which
can’t help but bolster faith in the justice system when it denied Rob Ford’s
request to be reimbursed for legal costs. As noted in earlier posts, A Superior
Court Judge had ousted Ford from his position as mayor over a conflict of
interest issue. On appeal, the Divisional Court overturned that ruling and
returned Ford to his mayoral seat. Ford then sought an order from the
Divisional Court that Mr. Madger, the citizen who brought the case against Ford,
pay his legal costs. The costs were in the ballpark of $116,000.00.
Ford argued Mr. Madger was pursuing a political
agenda when he brought the case against him. Mr. Madger argued he was acting in
the public interest. The Divisional Court agreed with Mr. Madger, finding that
Mr. Madger was a public interest litigant. As such, the Court ruled it would be
improper to order Mr. Madger to pay Ford’s costs[1].
agenda when he brought the case against him. Mr. Madger argued he was acting in
the public interest. The Divisional Court agreed with Mr. Madger, finding that
Mr. Madger was a public interest litigant. As such, the Court ruled it would be
improper to order Mr. Madger to pay Ford’s costs[1].
This decision is important more for what it didn’t do than for what it did do. What
it didn’t do is create a precedent for public officials being awarded
exorbitant cost awards against citizen public interest litigants. A decision
awarding Ford costs could have had an extreme chilling effect on such
litigants, effectively terrorizing citizens into silence and submission when officials
commit dubious acts. If the Divisional Court had ruled otherwise, the fear of
being ordered to pay bank-breaking costs if they lost their case could have
muzzled any citizen who would seek to uphold the public interest.
it didn’t do is create a precedent for public officials being awarded
exorbitant cost awards against citizen public interest litigants. A decision
awarding Ford costs could have had an extreme chilling effect on such
litigants, effectively terrorizing citizens into silence and submission when officials
commit dubious acts. If the Divisional Court had ruled otherwise, the fear of
being ordered to pay bank-breaking costs if they lost their case could have
muzzled any citizen who would seek to uphold the public interest.
The Divisional Court’s decision defended the rights
of citizen’s to hold their public officials to account and protected such
citizen’s from being silenced for fear of punishing cost orders. Ford has said of the decision: “It’s
ridiculous. I won it fair and square.”[2]
While it’s true that in Canada we typically have a loser pays costs system, this was not the typical case.
of citizen’s to hold their public officials to account and protected such
citizen’s from being silenced for fear of punishing cost orders. Ford has said of the decision: “It’s
ridiculous. I won it fair and square.”[2]
While it’s true that in Canada we typically have a loser pays costs system, this was not the typical case.
Although to say Mr. Madger has lost the case against Ford may be jumping too far ahead. Mr.
Madger and his attorney have sought leave from the Supreme Court to appeal the
ruling which restored Ford to office.
Madger and his attorney have sought leave from the Supreme Court to appeal the
ruling which restored Ford to office.
One ground by which leave may be sought is where the
issue is of public importance. This adds to the significance of the Divisional
Court’s decision not to award costs against Mr. Madger. In one fell swoop the
Divisional Court’s ruling refused to create a chilling effect on public
interest litigation and reinforced the contention that Mr. Madger is a genuine
public interest litigant, supporting the grounds under which leave to appeal to
the Supreme Court is sought.
issue is of public importance. This adds to the significance of the Divisional
Court’s decision not to award costs against Mr. Madger. In one fell swoop the
Divisional Court’s ruling refused to create a chilling effect on public
interest litigation and reinforced the contention that Mr. Madger is a genuine
public interest litigant, supporting the grounds under which leave to appeal to
the Supreme Court is sought.
Citizens deserve to have the chance to hold their
public officials to account without fear of reprisal. Ford does not seem to
agree. And why would he? To be accountable means simply to be responsible to
other people for one’s own poor behaviour. With a track record like Ford’s,
it’s doubtful there could be anything more frightening than to be accountable
to the citizens he purports to govern. Numerous political luminaries have noted
that transparency and accountability are vital pillars to good democratic
government. Though Ford has an apparent willingness to dispose of these pillars
with little or no thought, it is encouraging to know that the judiciary is not
similarly inclined.
public officials to account without fear of reprisal. Ford does not seem to
agree. And why would he? To be accountable means simply to be responsible to
other people for one’s own poor behaviour. With a track record like Ford’s,
it’s doubtful there could be anything more frightening than to be accountable
to the citizens he purports to govern. Numerous political luminaries have noted
that transparency and accountability are vital pillars to good democratic
government. Though Ford has an apparent willingness to dispose of these pillars
with little or no thought, it is encouraging to know that the judiciary is not
similarly inclined.