Law Times

Page 4 May 7, 2018 • Law TiMes www.lawtimesnews.com Student unions awarded costs in private litigation cases BY MICHELLE CUTHBERT For Law Times A n Ontario Superior Court judge has or- dered a men's issues organization and two campus anti-abortion groups to pay for the costs of three stu- dents unions, after the student groups launched a legal battle against the students unions when their bids to be recognized as official student organizations and receive union funding were denied. In Arriola v. Ryerson Stu- dents' Union, Justice Paul Perell ordered the men's issues organi- zation to pay $60,000 to the Ry- erson Students' Union. In Zettel v. University of Mississauga Students' Union, Perell ordered UTM Students for Life to pay the University of Mississauga Students' Union $35,000, and in Naggar v. The Student As- sociation at Durham College and UOIT, he ordered Speak for the Weak to pay the Student Association at Durham College and UOIT $50,000. The three cases were argued together, and the Justice Centre for Consti- tutional Freedoms acted for all three groups of applicants. Lawyers say that although the costs awarded aren't unusual for private interest litigation, the costs award by Perell is notable because of a distinction made in the ruling that university student unions do not owe their mem- bers the same duty as a public body, like the universities with which they are associated. Perell ruled that because the unions were privately incorporated groups, largely independent from the public universities, the club status and funding issues weren't in the public interest. "There may be cases in which [the Justice Centre for Consti- tutional Freedoms] acts for liti- gants in a matter that attracts the court's discretion to make no award as to costs or to reduce the costs, but the cases at bar were not such cases. There was a genuine dispute about rights between the parties and this was normative litigation between private citizens and private sec- tor organizations. Accordingly, the normal rules and principles with respect to the court's dis- cretion to award costs apply," said the ruling. Perell dismissed the cases on the grounds that the unions did not owe the groups the privilege of being officially recognized and receiving funding under their student group policies, and that the refusal to recognize those groups was not a Charter violation as the groups were still free to associate on campuses without the union's funding. Cara Zwibel, director of the Canadian Civil Liberties Asso- ciation's fundamental freedoms program, says that large cost awards can be expected to arise in private litigation. However, she says that, generally, high cost awards raise the possibility that groups could be deterred from bringing issues to the courts for adjudication. "In general, our costs system is not a perfect one. It can cre- ate problems in cases like this, where a party would be inclined to try to seek a remedy from the court but is scared off by the prospect of having to pay a huge award," says Zwibel. Each union argued that the groups violated some terms of their policy, and the groups ar- gued in return that the failure of the unions to recognize them as official organizations was an in- fringement on their freedom of expression and association and a violation of the unions' con- tracts with their members. Perell also pointed out that had the student groups been successful, they would have most likely sought costs from the unions. Jennifer Saville, of St. Law- rence Barristers LLP, was counsel for the Ryerson and University of Toronto students unions. She says that the applicants were aware of the risk of costs being or- dered against them — or, at least, they should have been aware. "This isn't public interest liti- gation," she says. "And people are certainly free to commence liti- gation to pursue their own pri- vate causes, but they do so at the risk of bearing costs." Saville and her co-counsel on these cases, Alexi Wood, point to the similarities in a case that went before the courts in 2016, where an anti-abortion group called Ryerson Students for Life sued the Ryerson Student's Union for refusing to recognize it as an official students group. It, too, argued that its Charter rights were at stake, and Justice Elizabeth M. Stewart dismissed the case on the grounds that the unions were within their rights as private corporations and that the group's Charter rights were not infringed upon. Jeffrey Andrew, of Caval- luzzo LLP, whose practice fo- cuses on administrative law and constitutional law among other areas, says that while it's possible that the cost award could deter similar student political groups from approaching litigation in the future, the cost awards in these cases were justified. "I don't see the courts extend- ing, necessarily, depending on the case, sympathy to people just because they're young and have a principle they want to establish. If the court thinks it's unmeri- torious and you've taken up this court time, that's the risk you take," says Andrew. Saville says there was never any question in the public in- terest as to the group's Charter rights to freedom of expression or association. "This was a private corpora- tion, [which] does not owe Char- ter rights to any of its members," says Saville. "So the character- ization of this as a Charter case where freedom of expression or freedom of association is an is- sue is explicitly what Justice Per- ell found it not to be." James L. Turk, director of the Ryerson Journalism School's Centre for Free Expression, says the cost awards could poten- tially suggest a different path for change for student political groups that feel as though their voices are not being heard in their student democratic bodies. "It's the same way that when I was really unhappy with Mr. Harper's government, I couldn't take him to court, I had to work politically to get somebody else elected," he says. "And for stu- dents that are unhappy with the leadership or the kinds of deci- sions being made by their lead- ership, the only real remedy is a political one and that is to cam- paign and get a different group elected with different policies to run the student association." Zwibel says that although Perell made a rightful distinc- tion in this case, it's interesting to consider whether university student unions owe duties simi- lar to universities. "The fact that these decisions go in the direction of saying, 'No, they don't,' that's still an is- sue that I think groups would want to continue to try to litigate and try to address," say Zwibel. The applicant groups were all represented by Marty Moore from the Justice Centre for Con- stitutional Freedoms in Calgary. Moore said he did not have a comment on the case at this time. The ruling noted that Perell found "some of the conduct of the University of Toronto Mis- sissauga Students' Union as mis- taken, unfair, and inappropri- ate." "The fact that the Union at- tempted to defend this conduct increased the costs of the liti- gation and I, therefore, reduce their award of costs," said the ruling. LT NEWS NEWS NEWS This is more than a phone book. 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Call 1.800.387.5164 or visit www.store.thomsonreuters.ca for a 30-day no-risk evaluation KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY Untitled-3 1 2018-05-01 1:57 PM Jennifer Saville says 'people are certainly free to commence litigation to pursue their own private causes, but they do so at the risk of bearing costs.' In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more

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