City Report on Legal Costs Policy has Inaccuracies says Friends of Lansdowne

On Tuesday, September 6, the City of Ottawa's Finance and Economic Committee will vote on whether to repeal Ottawa's policy on seeking legal costs for pubic interest litigation. According to Friends of Lansdowne (FOL), the staff report on the policy contains inaccuracies. The group is urging Councillors to check the facts and understand the issues before taking a decision.

The current City of Ottawa policy is that when it comes to serious public interest litigation (that is not frivolous or vexatious) each side pays its own legal bills and agrees not to go after cost awards from the other party. This objective is to encourage citizen engagement and democratic participation and to avoid the phenomenon of litigation chill, where threats of ruinous cost awards make legal recourse inaccessible to citizens.

There have only been a few instances of serious public interest litigation in recent years--from the Greenspace Alliance, South March Highlands, Interval House and Friends of Lansdowne. Ostensibly it is the Lansdowne case that has triggered the City's move to repeal the policy. However, in FOL's view, the City's report contains inaccuracies in describing the Lansdowne situation.

1. The report says that FOL asked the City to confirm that it would not seek costs regardless of consideration of the merits of the case. This is not true. FOL asked the City to confirm it would not seek costs based on the merits of the case. FOL provided more than ample documentation for the City to determine that this was indeed public interest litigation, and was not frivolous and vexatious. Had it been the latter, the City could have moved for the case to have been dismissed saving litigation costs for all.

2. The report blames Friends of Lansdowne for prolonging the proceedings and increasing litigation costs. In fact, FOL filed its application in September and asked for a hearing in December. It was the City that said it could not meet this timetable and then which repeatedly delayed the proceedings by refusing to disclose information until ordered by the court to do so. FOL had to seek court orders on three different occasions. Similarly, interventions and lack of timely response by OSEG caused further delay. The delays caused by the City and OSEG significantly increased costs for both sides--the only difference being that the Friends of Lansdowne had to pay twice--through their own fundraising efforts and through their taxes.

3. The report casts doubts on the seriousness and significance of the FOL suit as public interest litigation and selectively quotes from the decision of the Ontario Superior Court, concerning deference to City Council. However, it is premature to rely on the opinion of a lower court when a ruling has been appealed, especially when there is a Supreme Court ruling that does not support deference to City Councils on issues of illegality. The Lansdowne case is precedent-setting and is still being litigated so it is inaccurate to report on it as if the final ruling had been made.

Friends of Lansdowne believes that it would be regrettable for the City to rescind its progressive public interest litigation policy, but notes that its own suit would not be affected by the change, since its application was filed under the old policy.

However the ability of citizens groups to challenge future City Council decisions will be curtailed if the policy is changed. "This smacks of intimidation" says Jo Wood, a member of Friends of Lansdowne. "Do we really want our City Council to go after costs awards from public interest groups. We already have a democratic deficit; this will increase it that much more."

Wood continues "In any case, this policy change is really a red herring when it comes to the City's legal costs. There have only been a handful of public interest cases; most legal action relates to land disputes at the Ontario Municipal Board. How much has the City spent at the OMB? Has it ever recouped costs from the developers who cause all this extra legal costs by proposing land developments that do not fit the current zoning? Maybe the City has to look at the way it manages legal costs overall; rather than targeting volunteer groups."