Lawyers say that although the costs awarded aren’t unusual for private interest litigation, the costs award by Perell is notable because of a distinction made in the ruling that university student unions do not owe their members the same duty as a public body, like the universities with which they are associated. Perell ruled that because the unions were privately incorporated groups, largely independent from the public universities, the club status and funding issues weren’t in the public interest.
“There may be cases in which [the Justice Centre for Constitutional Freedoms] acts for litigants in a matter that attracts the court’s discretion to make no award as to costs or to reduce the costs, but the cases at bar were not such cases. There was a genuine dispute about rights between the parties and this was normative litigation between private citizens and private sector organizations. Accordingly, the normal rules and principles with respect to the court’s discretion to award costs apply,” said the ruling.
Perell dismissed the cases on the grounds that the unions did not owe the groups the privilege of being officially recognized and receiving funding under their student group policies, and that the refusal to recognize those groups was not a Charter violation as the groups were still free to associate on campuses without the union’s funding.
Cara Zwibel, director of the Canadian Civil Liberties Association’s fundamental freedoms program, says that large cost awards can be expected to arise in private litigation. However, she says that, generally, high cost awards raise the possibility that groups could be deterred from bringing issues to the courts for adjudication.
“In general, our costs system is not a perfect one. It can create problems in cases like this, where a party would be inclined to try to seek a remedy from the court but is scared off by the prospect of having to pay a huge award,” says Zwibel.
Each union argued that the groups violated some terms of their policy, and the groups argued in return that the failure of the unions to recognize them as official organizations was an infringement on their freedom of expression and association and a violation of the unions’ contracts with their members.
Perell also pointed out that had the student groups been successful, they would have most likely sought costs from the unions.
Jennifer Saville, of St. Lawrence Barristers LLP, was counsel for the Ryerson and University of Toronto students unions. She says that the applicants were aware of the risk of costs being ordered against them — or, at least, they should have been aware.
“This isn’t public interest litigation,” she says. “And people are certainly free to commence litigation to pursue their own private causes, but they do so at the risk of bearing costs.”
Saville and her co-counsel on these cases, Alexi Wood, point to the similarities in a case that went before the courts in 2016, where an anti-abortion group called Ryerson Students for Life sued the Ryerson Student’s Union for refusing to recognize it as an official students group. It, too, argued that its Charter rights were at stake, and Justice Elizabeth M. Stewart dismissed the case on the grounds that the unions were within their rights as private corporations and that the group’s Charter rights were not infringed upon.
Jeffrey Andrew, of Cavalluzzo LLP, whose practice focuses on administrative law and constitutional law among other areas, says that while it’s possible that the cost award could deter similar student political groups from approaching litigation in the future, the cost awards in these cases were justified.
“I don’t see the courts extending, necessarily, depending on the case, sympathy to people just because they’re young and have a principle they want to establish. If the court thinks it’s unmeritorious and you’ve taken up this court time, that’s the risk you take,” says Andrew.
Saville says there was never any question in the public interest as to the group’s Charter rights to freedom of expression or association.
“This was a private corporation, [which] does not owe Charter rights to any of its members,” says Saville. “So the characterization of this as a Charter case where freedom of expression or freedom of association is an issue is explicitly what Justice Perell found it not to be.”
James L. Turk, director of the Ryerson Journalism School’s Centre for Free Expression, says the cost awards could potentially suggest a different path for change for student political groups that feel as though their voices are not being heard in their student democratic bodies.
“It’s the same way that when I was really unhappy with Mr. Harper’s government, I couldn’t take him to court, I had to work politically to get somebody else elected,” he says. “And for students that are unhappy with the leadership or the kinds of decisions being made by their leadership, the only real remedy is a political one and that is to campaign and get a different group elected with different policies to run the student association.”
Zwibel says that although Perell made a rightful distinction in this case, it’s interesting to consider whether university student unions owe duties similar to universities.
“The fact that these decisions go in the direction of saying, ‘No, they don’t,’ that’s still an issue that I think groups would want to continue to try to litigate and try to address,” say Zwibel.
The applicant groups were all represented by Marty Moore from the Justice Centre for Constitutional Freedoms in Calgary. Moore said he did not have a comment on the case at this time.
The ruling noted that Perell found “some of the conduct of the University of Toronto Mississauga Students’ Union as mistaken, unfair, and inappropriate.”
“The fact that the Union attempted to defend this conduct increased the costs of the litigation and I, therefore, reduce their award of costs,” said the ruling.