Editorial: Should G20 plaintiffs pay police legal bills?

On its face, Good v. Toronto Police Services Board is a good candidate for having no costs ordered against the plaintiff.

Given the controversies surrounding the G20 summit in 2010, it was certainly reasonable to expect a class action stemming from the mass arrests by police that weekend. Sherry Good took up the cause after police kettled her and others in downtown Toronto and held her for hours. They released her without charge.

Earlier this year, however, the class action against Toronto police failed and on Sept. 16, the Ontario Superior Court ordered the plaintiff to pay $200,000 for the defendant’s legal fees. It’s a big amount for a case that had an obvious public interest component.

But as Justice Carolyn Horkins found, there were significant problems with the case. In rejecting certification in May, for example, she expressed concerns with “unclear language” in the plaintiff’s case that excluded people charged by police. As she pointed out, police do have the right to arrest people if they believe they’re about to breach the peace. It’s not an offence, however, so it follows that police can arrest people in such circumstances without charge. As Horkins noted, “The fact that an individual was arrested or detained under the Criminal Code but released without charge does not prove that the arrest was unlawful.”

In considering making a plaintiff in a class action pay the defendant’s costs, judges have to consider a number of factors, including the public interest issues involved in the case. In Horkins’ view, while there was a clear public interest issue at stake, “the flawed nature of this certification motion dictates that reasonable costs should be ordered.”

Ultimately, she ordered $200,000 after Toronto police reduced its submission to $370,000 from partial indemnity fees of almost $540,000. The costs order is certainly concerning from an access to justice standpoint, but fortunately Ontario has redress in the form of the Law Foundation of Ontario’s class proceedings fund. The fund, which provided financial support for Good’s case, levies 10 per cent of any awards or settlements in favour of plaintiffs it assists. So at least there’s help for people like Good who face large costs orders. According to the most recent annual report on the fund, it took in $3.1 million in levies in 2011 and paid out $2.2 million in costs to defendants.

Cases like Good provide a useful opportunity to debate whether Ontario should follow other jurisdictions in diverging from the rule of having costs follow the event. But given the need to give defendants some relief and the help available to plaintiffs, it’s good there’s at least somewhere people can turn. While critics may also question the merits of cases such as Good in the first place, it raised important issues that needed airing and Horkins’ ruling at least provides meaningful guidance on how to approach such matters in advance of certification in the future.
Glenn Kauth

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