If someone spends years litigating to overturn a regulation only to see the case rendered moot at the last minute when the government changes its policy on its own, should the applicant get costs?
That was a key question in the Sept. 27 Ontario Superior Court ruling in
Josef v. Ontario Minister of Health. The case related to Michelle Josef’s challenge to the province’s 1998 decision terminating OHIP funding for sex-reassignment surgery. She began the action in 1999 but held it in abeyance following the Liberal government’s ascension to power 10 years ago to see if it might change the policy. It didn’t do so, so she relaunched the case in 2006 as the costs built up.
Then in 2008, just after the government’s deadline to file its factum, it repealed the regulation. Josef, in essence, had achieved much, but not all, of what she had set out to do.
The question last month, then, was whether the government should have to cover $261,000 in substantial indemnity costs. According to Superior Court Justice David Corbett’s ruling on the issue, Cynthia Petersen and her colleagues at Sack Goldblatt Mitchell LLP had done the work on a
pro bono basis. But the government argued Josef hadn’t prevailed in the litigation simply because it had changed its policy.
It’s an interesting issue. On the one hand, the government is technically right. But on the other side, Corbett found it’s not necessary to have a judicial decision in a proceeding or step in order for the court to award costs.
There were several elements that weighed in Josef’s favour. For example, Corbett noted Josef had been unable to afford the $22,000 cost of the sex reassignment surgery let alone the legal bills stemming from the litigation. In addition, he considered the issue of access to justice in such cases and the need to encourage lawyers to provide
pro bono services.
“Courts are swift to extol the virtues of making legal services available, and the duty and valour of working on a
pro bono basis,” wrote Corbett.
“These sentiments are pious and empty if costs awards devalue
pro bono work.”
Those are wise words indeed. Josef will get costs of $200,000, which was the correct result. And while the legal profession will always struggle with the pressure to provide
pro bono services, Corbett has at least made a strong statement that the court will do what it can to support them.
—
Glenn Kauth
