Divisional Court Costs Award Against Pieters Excessive

     Public policy in Ontario has chosen to dispsense with the concept of indemification for costs in human rights matters.  Neither complainants or respondents are entitled to indemnification for the expenses they incure in prosecuting or defending human rights complaints.  Policy makers suggest that this departure from the general rule in civil litigation that the loser indemnifies the winner for the cost of the litigation creates an inexpensive avenue of redress to complainants.  The Divisional Court has often recognized and upheld this policy in its adjudication of judicial review applcations involving human rights matters. 

     This laudable public policy may have been overlooked in the case of Pieters  v.  Peel Law Associaiton 2012 ONSC 1048 when the Divisional Court ordered African-Canadian lawyers Selwyn Pieters and Brian Noble to pay costs of $20,000 to the Peel Law Association.  The quantum of costs awareded here is excessive when compared to like cases decided by the Divisional Court and when one considers that these costs were only to indemnify the successful party and not punish Mr. Pieters and Mr. Noble.  In Audmax  v.  OHRT 2011 ONSC 315 the employer successfuly sought judicial review of a Tribunal finding of religious discrimination and was awareded $10,000.  In Shaw  v.  Phips 2010 ONSC 3884  the Toronto Police Services Board and P.C. Shaw unsucessfuly sought judicial review of a Tribunal finding of liability for racial discrimination and a mere $2,000 was awarded to Mr. Phips.  In a further unsuccessful appeal to the Court of Appeal in Shaw  v.  Phips no costs were ordered "on the understanding of the parties." Indeed, a review of the Divisional Court jurisprudence on costs overall suggests that the parties are typically afforded an opportunity to agree on the issue themselves.

     Unlike the appeal of a trial matter, most judicial review applications have no transcript evidence and are very straight-forward.  Typically the application record for a moving party like the Peel Law Association consists of a Notice of Application.  The Tribunal is obligated to file its record with the Divisional Court.  Each party files a factum and a Book of Authorities.  There was no transcript of the proceedings before the HRTO.  Accordingly, based on my close to twenty years of experience in litigating matters like this a reasonable bill of costs on this application would be the following:


           1     Preparation of Notice of Application

                  - review evidence at hearing
                  - review decision - identify errors
                  - review case law
                  10 hrs

          2.     Complile application record
                   1 hr

          3.     Draft factum and Book of Authorities
                   15 hrs

           4.     Review opposing factum etc.
                   3 hrs

          5.     Prep for hearing -
                     2 hrs

          6.       Attendance
                      2 hrs     

Total:  33 hrs @ $300 = $9,900 + HST = $11,187


Commentary & Analysis:

      The adjudication of costs is an important matter.  The adjudication of costs on judicial review applications involving human rights is - in my view - an even more serious matter.  Because human rights legislation is remedial and quasi-constitutional courts must be very careful not to do anything that would make these remedial forums unaccessable to the people.  If public policy in Ontario has seen fit to depart from the standard costs model in human rights matters before the Human Rights Tribuanl of Ontario this purpose is defeated if courts do not carefully scrutenize the costs demands put forward by parties in judicial review applications involving those decisions at Divisional Court.  Based on the above-noted Bill of Costs the successful party ought reasonably to have expended approximately $10,000 on the proceeding.  An award of costs on an application of this nature ought to be on a party-party scale and not full indemnification.  The jurispurdence is clear that solicitor-client or substantial indemnity costs are for exceptional circumstances.  There was nothing exceptional from a costs perspective about this judicial review application.   The quantum of costs awarded appears to be enough to indemnify the Peel Law Association for the proceedings before the Tribunal as well.

Note:  This piece is written to draw attention to an issue of public importance, namely, the proper adjudication of costs in civil proceedings involving human rights claims and the fact that costs award can close the door to our courts to the people who fund them.



                   

Court of Appeal to hear Selwyn Pieters' Appeal

     I received a press release informing me that the Court of Appeal for Ontario has granted leave to appeal Pieters el al  v.  Peel Law Association 2012 ONSC 1045.  Readers may recall that this is the case in which the Human Rights Tribunal of Ontario found that the Peel Law Association violated the right of high profile African-Canadian human rights lawyer, Selwyn Pieters, to be free from discrimination based on race and found that he was singled-out for scrutiny on account of his race by a librarian while in the lawyers' lounge at the Superior Court in Brampton.  The Divisional Court overturned the Tribunal's decision and ordered Pieters to pay $20,000 in costs to the Peel Law Association.

     The case has gained notariety in the profession because Mr. Pieters maintains that he and his African-Canadian colleague, Mr. Nobel,  were "racially profiled" by the Peel Law Association staffer who approached them to verify that they were lawyers.  I agree and fully understand Mr. Pieters' sense of frustration and humiliation for being singled-out for scrutiny by Peel Law Association staff on account of his race.  I am satisfised that in this case the Tribunal made the correct decision and that this decision was denied the level of defference typically afforded such decisions by the Divisional Court contrary to their own jurisprudence.

     I am - however - troubled by the use of the word "racial profiling" to charcterize the nature of the discrimination in this case.  Racial profiling is a form of discrimination which arises where state actors - generally law enforcement personnel - who have the power to deprive one of fundamental rights such as equality, to be safe against unreasonable search and seizure and to be accused of criminal allegations - use race as a basis to enforce the law.  This I have argued elsewhere is a serious wrong amounting to a violation of the equality provisions of the Charter of Rights and Freedoms.  The discrimination in Pieters  v.  Peel Law Association is regular, good old-fashioned discrimination - nothing more nothing less.  Racial profiling on the other hand is racial discrimination perpetrated under colour of law.  To characterize the discrimination in Pieters  v.  Peel Law Association as "racial profiling" is to show a total misunderstanding of the term and the nature
and quality of the harm associated with its manifestation.  In fairness to the Tribunal and the Divisional Court they did not at any time use the term "racial profiling" to characterize the discrimination alleged in the Pieters case.  The specialized press and the mainstream media did.

     It is anticipated that the Court of Appeal for Ontario will find that the Divisional Court erred in law in applying the cases of Ontario Director, Disability Support Program  v.  Tranchemontagne 2010 ONCA 593 and McGill University Health Centre  v.  Syndicat des employees de l'Hopital General de Montreal  2007 S.C.C. 4 to the type of discrimination involved in Pieters.  Those cases deal with non-intentional adverse impact discrimination.  Pieters - like I said above - deals with regular, good old fashioned racial discrimination. 

      

Credibility vs. Racial Profiling/Denial of Equality ?

   Yesterday the Court of Appeal for Ontario released its decision on an application under section 684 of the Criminal Code of Canada for funding in R  v.  Kampe 2012 ONCA 558 - a case in which my client Mr. Kampe testified in his own defence that members of the Toronto Police Service targetted him on account of his race and in fact planted cocaine on his person and a digital scale in his car to secure his conviction for possession of a controlled substance for the purpose of trafficking.  Justice of Appeal Jurianz heard the application on September 27th, 2012 and dismissed it on December 5th, 2012.

   In this post I wish to review and analyse the Court of Appeal's decision denying this needy man funding for what I consider to be a meritorious appeal on an issue of public importance not only to African-Canadians but all residents of Ontario.  My objective in doing so is to contribute to the jurisprudence and to stimulate public discourse on the evolving concept of racial profiling/denial of equality. Readers may recall that, contrary to the conventional wisdom on the subject, it is my thesis that inherent in any act or omission of racial profiling is a denial of equality under section 15 of the Canadian Charter of Rights and Freedoms.

  Appellant's Argument:

   The Appellant's argument is clearly stated at p.4 of the Applicant''s Factum in the following words:

 "IT IS RESPECTFULLY SUBMITTED THAT the record reveals the following fundamental errors with the decision of the learned trial judge:

1.   A failure to apprehend and apply the evidence before her to the law set out in R  v. Brown etc.; and

2.   A failure to appreciate that the police failure to obtain the passenger particulars and or her statement was highly relevant to the defence raised.

The Law:

   In R  v.  Brown 2003 Canli 52142 the Court of Appeal ruled that racial profiling can rarely, if ever, be established with direct evidence because police officers will rarely admit to racial bias and as a result a trial judge faced with such a defence must assesss all of the circumstantial evidence and ask themself whether it raises an inference of racial profiling.

   In R  v.  W.(D) [1991] the Supreme Court of Canada set out the test for the assessment of credibility where a defendant testifies.  This case confirms that the assessment of credibility should not be a contest between the prosecution evidence and the defence evidence.  A defendant can be acquitted even where his or her evidence is rejected provided the evidence nonetheless leaves the trier of fact with reasonable doubt of a defendant's guilt.

   The learned trial judge in R   v.  Kampe did not subject the whole of the evidence to the scrutiny mandated by R   v.  Brown supra but instead made credibility findings against the Appellant and rejected his evidence without  making mention of R  v. Brown, supra.  One crucial piece of evidence in the case involved the failure of the police to investigate, charge and secure the identification of a European-Canadian woman who was in Mr. Kampe's vehicle with him during the incident and whom police witneeses acknowledged was at the very least a material witness.  This evidence of differential treatment on the part of the police I contend is circumstantial evidence of racial profiling and ought to have been factored into a R   v.  Brown analysis by the learned trial judge - not for the purpose of bolstering his credibility but as circumstantial evidence of a racial animus capable of raising a reasonable doubt in the trier's mind.

Court of Appeal's
Reasons on funding
application:

   The Court of Appeal ruled that there was no error on the part of the trial judge and hence no merit to the arguments raised above.  The court's representation of my arguement is not consistent with the very basic argument set out in my factum and recorded above.  I will copy them verbatim below and try to address them accordingly:

[14]   "He argues that, had the trial judge properly considered all the circumstantial evidence, she would have inferred that the applicant had been racially profiled and would have accepted his testimony."

[15]   "Counsel for the applicant also proposes to renew on appeal his argument that the trial judge should have drawn an adverse inference from the Crown's failure to call the passenger as a witness.  He submits that an important aspect of the circumstantial evidence is that, as the police witnesses acknowledged under cross examination, the passenger had material evidence to give.  The trial judge should have inferred that she would have corroborated the applicant's testimony."

[22]   "There is nothing in Brown that supports the contention that the trial judge erred in principle in failing to draw and adverse inference from the fact that the Crown did not call the passenger as a witness."

Analysis and Commentary:

   It is settled law that a trial judge can acquit even where they categorically reject a defendant's evidence.  The inquiry with respect to reasonable doubt of a defendant's guilt is not whose evidence do I accept - prosecution or defence.  The Court of Appeal for Ontario held in  R   v.  Brown a defence of racial profiling will rarely be proven by direct evidence.  It must be proven by inference drawn from circumstantial evidence.  As this case illustrates there is a real danger that trial judges can circumvent the holding in R  v.  Brown supra on the point of racial profiling by merely rejecting a defendant's evidence.  Is the Court of Appeal suggesting that an R   v.  Brown analysis is not warranted where the defendant testifies to police planting evidence ?   or is the Court of Appeal suggesting that evidence showing a clearly differential application of the law as between an African-Canadian man and his European-Canadian female passenger is not evidence of racial profiling which trial judges ought to consider in a criminal trial ?  With the greatest of respect, this is bad law.  It brings us back in time to a place and time when "the black man had no rights that the white man had to respect."  Racial profiling is by its very nature a denial of the right to the equal protection and application of the law without discrimination based on race.