Toronto Mayor Rob Ford was understandably upset with the Divisional Court’s ruling last week declining to award him costs in his conflict of interest case.
“I won fair and square and I should be awarded costs,” he told Newstalk 1010 last week.
Given the $116,000 in fees at issue, Ford had reason to expect the losing side would pay. After all, it’s a lot of money and he won on appeal.
But as other cases show, civil litigation isn’t always fair, even to those who win.
On March 11,
Law Times reported on the case of Sandra Jones, the victorious plaintiff in the landmark
Jones v. Tsige matter. Her lawsuit against a colleague for invasion of privacy helped establish the tort of intrusion upon seclusion but she now faces a financial nightmare in covering her legal costs. The Ontario Court of Appeal awarded her $10,000 in damages but, noting the novelty of the issue, declined to order costs in her favour. As a result, she’s now facing a lawsuit seeking $68,000 by her former lawyer, Christopher Du Vernet, for unpaid legal bills.
In Jones’ case, she attempted to fight the lawsuit by questioning Du Vernet’s competence in representing her, a claim the Superior Court vigorously shot down in a recent ruling. But her losing argument on that issue doesn’t negate the fact that she’s in a difficult financial position.
In Ford’s case, it’s hard to be quite so sympathetic. The conflict of interest matter was also quite novel and he won on appeal on a technicality related to the appropriateness of a city council order requiring him to reimburse lobbyists for donations to his football foundation. The fact remains that he later voted on an issue he had a financial interest in and thumbed his nose at those who questioned his adherence to the rules. Moreover, there was a clear public interest at stake.
Both costs decisions reflect the occasional harsh realities of civil litigation. In Jones’ case, she took on the burden of trying to shape and change the law, although it’s arguable the damage award could have been higher. With Ford, the litigation is one of the hazards of public office for someone who often acts carelessly. That doesn’t mean, however, that there shouldn’t be some support for those who find themselves in unfair circumstances. While it would be unfair to award costs against the other side in both matters, some people who take on novel and trailblazing legal issues or who face politically motivated litigation raise funds for their cases. In an age of crowdsourcing, there are options, albeit imperfect ones, for those who find themselves in these types of circumstances.
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Glenn Kauth
