Government ordered to pay legal costs of settled Charter claim
Where applicants show significant merit to their cause, legal costs may be ordered even if a claim has settled
In Broomer v. Ontario (Attorney General), the Ontario Divisional Court ordered the Ontario government to pay legal costs in an application brought to challenge the Harris government’s lifetime welfare ban.
In April 2000, the Ontario government amended the regulations under the Ontario Works Act to provide that anyone convicted of welfare fraud would be permanently ineligible for social assistance. Several individuals challenged the lifetime ban, arguing that it violated their rights under ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms.
The government vigorously defended the application. However, before the case reached a hearing, an election was held and the Liberals formed a new government. The Liberal government repealed the lifetime ban and the parties entered into minutes of settlement in which all issues were resolved favourably to the applicants.
The only issue that remained unresolved was the question of legal costs. The government maintained that no costs should be paid by either party. The applicants maintained that the government should pay their legal costs since they had been wholly successful and had achieved the exact result they sought at the outset of the litigation.
The Divisional Court’s decision
The Ontario Divisional Court held that the government should pay the applicants’ legal costs. It held that:
Charter litigants, particularly those seeking their equality rights under s. 15 are often disadvantaged, poor, members of powerless groups in society, disabled, or a combination of several of those categories…All applicants are struggling to feed, clothe, and provide the necessities of life for themselves and their families. None, obviously, is in any position to fund a Charter application of this nature. The only way their Charter challenge to the legislation at issue could proceed was through the pro bono intervention of lawyers acting in this capacity in order to encourage them to continue taking on cases of this nature. Their continued participation in pro bono work ensures that disadvantaged citizens, such as these applicants, receive access to justice.
This is not to say the government should be treated as a bottomless pit of funding for every Charter challenge thought up by inventive legal minds. The applicants must be able to show significant merit to their cause, that is, a real possibility of ultimate success, or, as in this case, the actuality of success.
The Court concluded that it was appropriate to order the government to pay legal costs in this case. The applicants genuinely could not afford to pay for the litigation. Their claim was prima facie meritorious, the issues they raised were of public importance and transcended their own individual interests, and the issues had not been resolved in previous cases.