Intervenor liable for costs of main application given direct interest in outcome of proceeding

Ontario civil | Bankruptcy and Insolvency | Costs | Persons entitled to or liable for costs

Applicant union brought application to challenge constitutionality of Restoring Mail Delivery for Canadians Act. Intervenor employer CP Corp. was granted leave to intervene as added party with no condition regarding costs. Application judge granted application and held that Act unjustifiably violated ss. 2(d) and (b) of Canadian Charter of Rights and Freedoms. Judge dismissed union’s motion to address outstanding remedial issue. Parties made submissions on whether intervenor was entitled to or liable for costs. Intervenor was liable for its proportionate share of union’s costs of proceeding on partial indemnity basis of $54,000, and was entitled to its costs of remedial motion on partial indemnity basis of $26,000. General rule is that intervener is neither liable for nor entitled to costs in public and private interest contexts, but there are exceptions. Intervenor was liable for costs of main application. Intervenor, as employer, had direct interest in outcome of proceeding. Since intervenor was not acting purely in public interest, court could deviate from general rule. Intervenor’s involvement was extensive and it provided different and helpful perspective by addressing employer’s interests. Intervenor was not successful on application and anticipated that it could be entitled to or liable for costs. Intervenor was entitled to its costs of remedial motion. Intervenor had direct and private interest in remedial motion, provided different and helpful perspective, and was successful. Parties expended time and resources over and above preparation for main application so separate costs determination was appropriate.

Canadian Union of Postal Workers v. Her Majesty in Right of Canada (2017), 2017 CarswellOnt 18884, 2017 ONSC 6503, Firestone J. (Ont. S.C.J.); additional reasons (2017), 2017 CarswellOnt 2947, 2017 ONSC 292, Firestone J. (Ont. S.C.J.).

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