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Ontario ordered to pay legal costs of moot Charter application

September 27, 2013

The Government of Ontario has been ordered to pay the legal costs of a Charter application rendered moot by its change in policy.

In 1998, for no apparent reason, the Conservative government of Mike Harris terminated OHIP funding for sex reassignment surgery. Michelle Josef, who had already commenced the lengthy process required to obtain the surgery, launched a constitutional challenge. The Harris government opposed the application, as did the subsequent Liberal government of Dalton McGuinty.

After a few lengthy delays, the case was finally scheduled to be heard by the Superior Court of Justice in June 2008. However, a couple of weeks before the hearing, the Liberal government finally changed the policy and commenced funding sex reassignment surgery again (it had been funded for 25 years before it was terminated in 1998).

Ms. Josef brought a motion seeking to have the government pay her legal costs, even though the application had been rendered moot by the change in policy. On September 27, 2013, the Superior Court of Justice agreed that the government should be ordered to pay her costs. To find out why, click here.


James K. McDonald

Practice Areas

Civil Litigation