In a case that has already had a great many twists and turns, the latest occurred on April 2, 2013 when the Ontario Divisional Court released its ruling on costs in Magder v. Ford. Mayor Rob Ford, who had been successful in getting the original decision ordering him removed from office overturned, had sought approximately $116,000 in costs against Paul Magder. The Divisional Court, however, ordered that each party bear its own costs of all the proceedings to date.

The Divisional Court noted that although the general rule provides that costs follow the event in litigation proceedings (i.e. costs to the victor) and that Magder was not a public interest litigant, there were three grounds to justify not awarding costs to Ford:

  • success in the proceeding was divided as Magder was ultimately successful on three of the four primary issues argued on the application and on appeal
  • the “proceeding raised novel issues with respect to matters of public importance”
  • it was reasonable for Magder to have commenced the application since Ford never challenged the validity of the original order of Toronto City Council that the sanction imposed upon him was ultra vires

The Divisional Court’s cost ruling confirms that there is no blanket public interest exemption for electors who pursue applications under the Municipal Conflict of Interest Act; that the courts have awarded costs in such cases; and that applicants should be aware of the cost consequences of commencing applications under the statute. The ruling also makes it very clear that Magder was primarily successful and that the proceeding raised novel issues of “public importance.”

The Divisional Court’s choice of words is very interesting in view of Magder’s application for leave to appeal to the Supreme Court of Canada. One of the grounds for obtaining leave under s. 40(1) of the Supreme Court Act is the “public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question.”