Tuesday, May 18, 2004

The Cost of Defending Rights

A recent court decision shows that it is possible in Canada for a person, while defending the exercise of his rights, and partially winning, to be hit, on appeal of an award of costs in his favour, with costs later on.

In this case the person involved was fighting the Spirit of the Age - - pushing an unpopular cause and, in fact, challenging the wrong side of a politically correct issue. He won a significant victory as a matter of fact - - a victory that many people would like to downplay. The cost award against him makes this even clearer.

The case is one that has been watched widely in Canada for some years and one that we have already written about at the Centre (see our “LexView” review of the Brockie case at http://www.culturalrenewal.ca/lex/lex-38.htm and http://www.culturalrenewal.ca/lex/lex-51.htm)

Before discussing the latest wrinkle in this corrugated litigation, I must state my personal involvement in the Brockie case. I was co-counsel on Mr. Brockie’s appeal to the Ontario Divisional Court after he had been fined and ordered by an Inquiry Panel of the Ontario Human Rights Commission to print whatever materials gay and lesbian groups brought to him in the future.

He had refused to publish materials that group wanted published. I had nothing to do with the original hearing before the Ontario Human Rights Commission and was only retained for the appeal after the decision of the OHRC came out against him.

I also had nothing to do with the costs hearing after his victory at the Ontario Divisional Court.

To backup for a moment, it should be recalled that on the first appeal, Mr. Brockie appealed both findings (the OHRC remedy and the $5,000 fine awarded against him). He won on remedy and lost on the fine. But he also won in relation to another extremely important point - - that of whether his religious beliefs had any public dimension or whether he could only hold these beliefs (as had been argued against him) in his home and church.

The Gay and Lesbian Alliance, on the other hand, won the right to have its ordinary business papers published - - cards and letterhead. That’s it. The more controversial materials Mr. Brockie and others like him were concerned they would have to publish he is entitled to refuse to print. That was the major issue in the case and everyone in the courtroom knew it. Somehow this got lost before the Court of Appeal.

At that original appeal, he was awarded, by the Ontario Divisional Court, as befits this divided result, costs in the region of $25,000 dollars against the parties that opposed him. The original fine of $5,000 was left in place for reasons that always seemed elusive.

So much for background. This brings us to the cost award being appealed by the head of the Gay and Lesbian Archives (one Mr. Brillinger), the Archives itself and the State’s own agent, the Ontario Human Rights Commission.

The OHRC, judging by their arguments in court and various self-serving but erroneous press pronouncements, one of which prompted us as lawyers to write to the National Post about, (they published it) is made up of many people who wish religion simply minded its own business and stayed in the closet. Meanwhile they are arguing that homosexuality and lesbianism need the State to encourage “visibility.” Such is the climate today.

In what can only be described as a bizarre reading of the Ontario Divisional Court decision (the one largely upholding Mr. Brockie’s rights), the Ontario Court of Appeal (Justices S.T. Goudge, J.C. MacPherson and G.D. Lane) held that: “…. the slight change in the tribunal's order by the Divisional Court had no impact on the respondents' legal rights. At most, the respondents' success was minuscule compared to the appellants' success on all the other issues in the appeal” (emphasis added).

I give their names for the historical record and quote their words for anyone who wishes to actually look at the original decision and then compare it to what the learned Justices of Appeal concluded.

Somehow holding that he had not won anything of substance, and that GALA had, the Ontario Court of Appeal reversed the Divisional Court (who, after all, had heard the entire appeal and made the costs award in light of the merits and who won what) and ordered costs against Mr. Brockie. Letterhead? Business cards? Wow-ee!

Mr. Brockie estimates that the costs against him will be in the region of $40,000 when all the dust settles.

Should ordinary citizens be concerned about what the Ontario Court of Appeal Justices have done? Yes, and here is why.

When the Ontario Human Rights Commission has a major aspect of its Order struck down by the Divisional Court, it cannot be considered, on any fair reading, “a slight change” or “miniscule.” The remedy of the manifestly inferior tribunal was overbroad and was struck down. End of story. The Ontario Court of Appeal panel’s one page endorsement on costs is strange to say the least - - some might say perverse.

What did GALA and the other parties win? The right to have “ordinary business materials” printed. Yawn. The reason that the result of Mr. Brockie’s original victory was not splattered all over the front pages of the newspapers was that the same-sex advocates lost at the Divisional Court on what all of us in the courtroom knew to be the major issues.

So how did the Ontario Court of Appeal somehow find that GALA had won the most significant aspects of the decision? Your guess is as good as mine.

Quite beyond the logic and legal validity of the Ontario Court decision is the wider question of whether such an award of costs as this is just? First of all, in this case Mr. Brockie did not have the benefit of the Court Challenge Program funding his litigation (as do many of those who seek, in the rhetoric of the day “to advance equality cases”).

Religious believers in the courts today are, in case after case, fighting well-funded individuals or associations - - well funded that is, by the Federal Government’s “Court Challenges Program.” As such, religious people or groups, who do not get funding for their defenses when challenged, are disadvantaged - - fighting what UBC Professor Graham Good in his important book Humanism Betrayed (McGill/Queens, 2001) has called “the new sectarianism” of race, gender and sexual orientation.

The new sectarianism, however, has control of funding and the rhetoric of its own skewed concept of equality (one based upon “trump rights”) in Canada today so what happens with costs is of great interest to those who wish to resist the massive intellectual (and sometimes legally assisted) frog-marching that is underway from coast to coast in this country.

Despite winning the most important aspects of the case (striking down the aspect of the remedy of most concern to citizens - - that he publish “any other materials” that GALA or groups like it bring to his print-shop) and getting established that his religious rights are public rights not just for the private or in Church, both of which he won in this case, Mr. Brockie gets costs awarded against him.

This is the new sectarianism of “sexual orientation” cases. Having had partial success and vindication the courts when they do this sort of thing punish the litigants by awarding costs that could be crippling and chill the future exercises by politically incorrect citizens in defense of their legal rights.

The use and abuse of awards of legal costs is significant because it can punish those who are least able to afford them and reward those (the Ontario Human Rights Commission, the Lesbian and Gay Archives) who are institutionally much more capable of covering the costs much less being rewarded for their acts - - acts which went well beyond the acceptable jurisdiction of the tribunal and called for judicial restriction on appeal.

This all raises another point of interest. Does the Court take into account (or even know) whether the Court Challenges Program is funding a particular case? Since the Fund gives even the skimpiest of legal clothing “deep pockets” perhaps it would be only fair if the court were going to make a sensible judgment in cases of this sort, for that information to be presented to the courts as part of the submissions as to costs? That would only seem fair.

We at the Centre see it as an important aspect for our society as a whole when an unfair award of costs against personal litigants poses a danger to our society.
When, as the saying goes, success is divided and some merit to the case has been established, there should not be costs awarded for or against the personal litigants since they have been justified in going to law even if their victories were not total.

Where, as in the Brockie decision, the Court narrows an overbroad remedy, the individual litigant should, as a matter of course, get redress from the State actor. To have a significant legal victory diminished by the Court of Appeal in a blatant mis-description of what the lower court actually said is a bizarre result quite apart from the cost implications.

We are told that Mr. Brockie has established a Defence Fund in an effort to raise funds to pay the costs that have been awarded against him. Many people will wish him well as he continues to challenge the Zeitgeist against the odds.

Iain T. Benson©