In Lancaster v. Compliance Audit Committee et al., 2013 ONSC 7631 (CanLII) Justice Quinn discussed in detail the principles that should apply to an award of costs against a public interest litigant.  In that case an appeal was brought regarding an audit committee decision not to investigate a campaign finance issue under the Municipal Elections Act.

The elector, Lancaster, made an audit complaint relating to the campaign finances of various individuals and when the audit committee under the Act ended the audit proceedings, appealed to the Ontario Court of Justice under s.81(6) of the Municipal Elections Act.  The Ontario Court of Justice dismissed the appeal.  The elector then appealed to the Superior Court of Justice, who dismissed the appeal again.

The appeal was not successful, but did reveal problems in campaign financing practices which were corrected in wake of the complaint and related litigation.  On appeal before the Superior Court, Justice Quinn noted:

[104] It was unreasonable for the Committee to have concluded that Siscoe, Stack and Dorsey did not contravene the Act and it was an error in law for the Ontario Court of Justice to have held likewise. To find that the Act was not breached is to understate the importance of Form 4 and the scrupulous care that should be exercised in its completion. I found that the omissions in the Form 4s of Siscoe, Stack and Dorsey were contraventions of the Act.

In the appeal, the various respondents sought significant costs against Lancaster.  Lancaster argued that she was entitled to a public interest costs exemption relying on the line of cases starting with Incredible Electronics Inc. et al. v. Attorney General of Canada, 2006 CanLII 17939 (ON SC), 2006 CanLII 17939 (ON SC).

Justice Quinn summarized the principles for the application of costs protection for public interest litigants as including the following:

a) the party must be a public interest litigant (little to gain financially, unselfish motives)

b) the litigation must be of public importance in the sense that the litigation advances the public interest even if the outcome of the litigation does not.

c) the nature of the parties

Justice Quinn raised the issue of financial impecuniosity of the public interest litigant but found it was not a significant factor holding:

[179] In my view, the financial circumstances of a public-interest litigant are not of much relevance. Public-interest litigation is not the purview of the poor. The rationale behind the special treatment afforded such litigation is not solely to allow David to fight Goliath; it is to encourage litigious forays into matters of public importance by those holding no personal interest in doing so.

Justice Quinn held that the factors applied and that Lancaster was a public interest litigant, stating:

The proceedings brought by Lancaster will be a reminder to anyone running in the next municipal election that more is required from a candidate than a list of promises and a fetching smile. She has performed a valuable public service, the effect of which will improve financial accountability in future elections (and enhance integrity in politics, as her fundraiser proclaimed).

Further, Justice Quinn noted that success on the appeal was divided because the respondents had engaged in a lengthy attack on Lancaster’s character which ultimately failed.

[199] This appeal is public-interest litigation. It touches upon financial integrity in political campaigns and, accordingly, involves matters of public importance. Lancaster is a public-interest litigant and is entitled to, and deserving of, a no-costs order. Municipal elections will never be the same in St. Catharines.

The decision is important because it continues to advance and apply the public interest costs protections outlined in Incredible Electronics.  The case also confirms that these cost protections apply to third parties/private parties to the litigation as well as government respondents.  It may be distinguished from other cases on the basis that there was divided success on some crucial issues. The doctrine relating to public interest cost protections is important, as it ensures access to the courts to address important issues of public law that might not otherwise be raised for fear of an adverse costs award.

Filed in: Elections Law, Litigation

Tags: Campaign finances, Public interest litigation