By Tyler Dawson
‘It is apparent based … that the JCCF actively and continuously promoted this case on its website, and inserted itself in the “cause” being litigated’
That advocacy, including fundraising for its legal efforts, which saw the JCCF’s assets grow from $133,271 to roughly $1.7 million in cash in 2020, led in part to Superior Court Judge William D. Black pinning costs on the group, which, he said, was “riding, in this case, the twin horses of advocate and interested party.”
While the judge cautioned against looking too closely at the work of a charitable outlet, he did note the JCCF’s controversial legal work in recent years, including hiring a private investigator to tail a Manitoba judge, litigating against Alberta’s gay-straight alliances for students and, in the case of John Carpay, the organization’s president, comparing the pride flag to the swastika.
Anna Lund, a law professor at the University of Alberta, said that the fact the judge cautioned against ruling based on ideology is crucial.
In an emailed statement, Marty Moore, a lawyer with the JCCF, said they had received the decision, and would be “carefully reviewing it.”
In 2021, Seneca College introduced vaccine mandates for its students and staff. In January 2022, the Justice Centre for Constitutional Freedoms, representing two students, sought a court injunction against the vaccine mandates.
The school did not consider exemptions on religious or medical grounds.
In September 2022, a judge dismissed the motion seeking an injunction. Black noted that neither student “made the choice that they have without exploring various options and mitigation strategies readily available to them,” including attending a different school, and that their charter rights were not violated.
The judge considered a number of factors in ruling that the JCCF should pay costs. He noted that while the policy was in effect in 2021, the JCCF waited to challenge it until January 2022, and then, according to Seneca “manufactured their own urgent timelines” in terms of getting the litigation done.
In response, the JCCF argued there should be no costs payable in public-interest legal work. (It also noted an apparent mathematical error in Seneca’s cost estimate of $177,176.59, which the judge agreed with.)
The judge did not find that Seneca deserved the full amount it claimed. Yet, while the JCCF expressed “sticker shock” at the costs, the judge said he did not agree. “Given the volume and complexity of the materials, the importance of the issues to Seneca, and the limited time available to amass a response, the costs sought are entirely reasonable,” he wrote.
The judge disagreed. The JCCF also argued that the legal costs incurred by those working for Seneca, totalling $79,988.50 in counsel fees, were outrageous.
Again, the judge disagreed: “By choosing a target in Toronto, and bringing the application and motion in the Court here, the applicants must be taken to accept the inevitability of counsel charging rates consistent with the Toronto market,” Black wrote.
The JCCF raised further complaints, including hiring outside counsel — which Seneca explained was because they don’t have in-house expertise on these issues — and raised concerns about billing for “secretarial overtime, photocopying, court reporting, meals and parking.”
In the end, the JCCF will be liable to pay $156,461.99.
It’s not entirely unusual that legal counsel might be on the hook for costs, Lund said, though it’s often in the case of class-action lawsuits. In this case, the court seems to be responding to the inability of the plaintiffs to pay any costs, but JCCF, which has been fundraising off the case, “has deep pockets,” and this is part of a broader pattern of advocacy by the JCCF.
“They also have the sort of greater advocacy going on against public-health restrictions, and this is part of that greater advocacy. And so (the court is) holding them responsible because they are both both advocate and (interested party) here,” Lund said.
Seneca College did not respond to the National Post’s request for comment by deadline.