Civil Litigation - Costs - Non-Parties
. Justice Centre for Constitutional Freedoms v. Costa
In Justice Centre for Constitutional Freedoms v. Costa (Ont CA, 2023) the Court of Appeal considered an appeal (although here only at a third-party intervention motion) of a high non-party costs award against a public interest organization that represented anti-vaccination parties, and which the court had accused of acting as both 'advocate and interested party':
 Two students enrolled in Seneca brought an application against the school. They claimed that Seneca breached their rights pursuant to ss. 2(a), 7, 8, and 15 Charter of Rights and Freedoms. The breaches were said to arise from Seneca’s policy requiring all students who attend Seneca’s campus to be fully vaccinated for COVID-19. The Justice Centre for Constitutional Freedoms (“JCCF”) represented the students at a motion seeking an interlocutory injunction to prevent Seneca from enforcing its vaccination policy against the applicants. On September 12, 2022, the motions judge dismissed the applicants’ motion for the interlocutory injunction.. Davies v. Clarington (Municipality)
 The parties to the motion – the students and Seneca – could not agree on costs. The students and Seneca provided written submissions.
 On November 24, 2022, based on the written submissions of the students and Seneca, the motions judge ordered approximately $156,000 in costs against the non-party, JCCF. For clarity, the costs were ordered against the JCCF specifically, not the students who were the party on the motion for an injunction.
 After reviewing JCCF’s mandate and active and continuous promotion of the case on its website, including fundraising for the litigation, the motions judge concluded that it was appropriate to hold JCCF liable for costs given “it is riding, in this case, the twin horses of advocate and interested party”. The motions judge then proceeded to apply the Rule 57.01(1) factors to determine the quantum of costs owed by JCCF to Seneca. The motions judge did not address the students’ argument that this litigation was brought in the public interest.
 I disagree with Seneca that this is a strictly private dispute with no public interest component. The order appealed from brings squarely into focus the question as to whether fundraising by a public interest organization can change that organization’s status when it comes to costs. This raises an issue of public policy that extends beyond the appeal itself.
In Davies v. Clarington (Municipality) (Ont CA, 2023) the Court of Appeal considered costs awarded against non-parties, here in a class action context - and where the behaviour resembled the tort of maintenance [para 60: "The tort of champerty is a more egregious form of maintenance as the maintainer shares in the profits of the litigation: McIntyre Estate, at para. 26."]:
(3) The Tests for Non-Party Costs Liability. Paletta International Corporation v. Liberty Freezers London Ltd.
 In Laval Tool, this court set out the two bases on which the Superior Court may order costs against a non-party.
 The first is the statutory jurisdiction under s. 131(1) of the CJA. That section provides that: “Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.
 The court confirmed in Laval Tool, at paras. 59-60, that the discretion to order costs payable by a non-party under the statutory jurisdiction is limited to situations in which the “person of straw” test is met. That test requires three things to be established:
(1) the non-party has status to bring the action; The trial judge held the person of straw test did not apply on the facts. The appellants do not challenge that finding in this court.
(2) the named party is not the true litigant; and
(3) the named party is a person of straw put forward to protect the true litigant from liability for costs
 The second basis discussed in Laval Tool for ordering costs against a non-party is the one that is germane to this appeal. That basis arises from a superior court’s inherent jurisdiction to prevent abuses of its process.
 Abuse of process is a flexible doctrine that is concerned with proceedings that are unfair to the point that they are contrary to the interest of justice. An abuse of process involves oppressive or vexatious treatment that undermines the public interest in a fair and just trial process and the proper administration of justice: Behn v. Moulton Contracting Ltd., 2013 SCC 26,  2 S.C.R. 227, at paras. 39-40.
 Laval Tool confirmed that “superior courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process”: at para. 66. The discretion is to be exercised “sparingly and with caution”: at para. 68.
 The following examples were offered in Laval Tool, at paras. 74-75, to illustrate non-party conduct that may attract a costs sanction: (a) a non-party initiating proceedings through a nominal plaintiff in order to oppress the defendant; (b) a non-party putting forward a nominal plaintiff to employ the court's processes as an instrument to defraud the defendant; and (c) a non-party engaging in conduct that amounts to the tort of maintenance or that “resembles a maintainer”. This court also stated that other “[s]ituations of gross misconduct, vexatious conduct or conduct by a non-party that undermines the fair administration of justice … can be envisioned”: at para. 76. This court then referenced how an order for costs against a director, shareholder or principal of a corporation who committed fraud or gross misconduct in the instigation or conduct of the litigation involving the corporation may be warranted in exceptional circumstances: at para. 77.
 Relying on inherent jurisdiction, the Laval Tool court made a non-party costs order against an individual who had caused his corporation to bring an action for payment for services against a person with whom the corporation had no contract and for whom it had performed no services. The action was fictitious, there was no good reason for it to have been brought in the company name, and the non-party’s conduct resulted in a waste of the defendant’s and the public’s resources: at paras. 86-87.
 Two points from Laval Tool are fundamental. First, the court’s inherent power to order costs against non-parties is discretionary. Second, because it derives from the court’s power to prevent its process from being abused, it focusses on conduct of the non-party in instigating or controlling the litigation in a manner that results in such abuse. The examples of non-party conduct that were referenced in Laval Tool as potentially deserving of a costs sanction against a non-party, and the actual disposition made by the court on the facts before it, reinforce this. They are all cases where the non-party was actively involved in the instigation or conduct of the litigation or actively asserted a significant degree of control over it, and thus brought about the abuse of process.
 The reference to conduct resembling that of a maintainer is consistent with this theme, since the tort of maintenance is committed by a person who “for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which [they have] no interest whatsoever and where the assistance [they render] to one or the other parties is without justification or excuse”: McIntyre Estate v. Ontario (Attorney General) (2002), 2002 CanLII 45046 (ON CA), 61 O.R. (3d) 257 (C.A.), at paras. 26-27. The tort of champerty is a more egregious form of maintenance as the maintainer shares in the profits of the litigation: McIntyre Estate, at para. 26.
 Even though the loans preceded the enactment of s. 33.1 of the CPA which now governs court approval of third-party funding agreements for class proceedings, the trial judge was of the view that Mr. Zuber, or his counsel, was required to obtain approval under the common law. At common law, a number of factors were considered before a funding agreement for a class proceeding was approved: Houle v. St. Jude Medical Inc., 2017 ONSC 5129, 9 C.P.C. (8th) 321, at paras. 63-65, aff’d 2018 ONSC 6352 (Div. Ct.), 29 C.P.C. (8th) 409. One factor was that the agreement could not interfere with the right of the representative plaintiff to control the litigation: Houle, at para. 64.
 I agree with the trial judge that the question of whether the loans should receive court approval and the question of whether the lenders engaged in an abuse of process are discrete questions. A failure to receive court approval of a third-party funding agreement does not necessarily mean the lenders engaged in conduct amounting to an abuse of process. Nothing in the case law preceding s. 33.1 of the CPA suggests that outcome. As the trial judge noted it was Mr. Zuber and his counsel who were required to seek approval, not the lenders. Moreover, at common law, the result of failing to obtain court approval where required is that the funding agreement does not come into force: Fehr v. Sun Life Assurance Company of Canada, 2012 ONSC 2715, 25 C.P.C. (7th) 68, at paras. 89-90. That would affect the enforcement of the loans as between Mr. Zuber and the lenders. It would not in and of itself justify imposing costs liability on the lenders in favour of the appellants.
 In conclusion, I am not persuaded by any of the appellants’ arguments that the trial judge erred in his approach to Laval Tool. It was open to the trial judge to find that the lenders, although they advanced loans at onerous rates of interest which accumulated to amounts in excess of what was available as a reasonable settlement, did not instigate or conduct Mr. Zuber’s litigation in a manner that constituted an abuse of process so as to attract costs liability as non-parties.
In Paletta International Corporation v. Liberty Freezers London Ltd. (Ont CA, 2021) the Court of Appeal held that costs could be awarded against a non-party:
 Mr. Sezerman was initially a plaintiff, but he was no longer a party to the litigation at trial. The trial court has inherent jurisdiction to award costs against a non-party. That discretion is exercised sparingly in cases involving “gross misconduct, vexatious conduct, or conduct that undermines the fair administration of justice”: 1318847 Ontario Limited. v. Laval Tool & Mould Ltd., 2017 ONCA 184, at paras. 66, 76.. Marcos v. Lad
In Marcos v. Lad (Div Ct, 2021) the Divisional Court considered the court's jurisdiction to award costs against a non-party:
 While Marcos and Manny both urged the trial judge not to make an award of costs against the non-party unless that non-party was a “person of straw”, in this case the trial judge, having concluded that Manny was not a person of straw, nonetheless, in our view, quite properly interpreted and applied her inherent jurisdiction to order costs against a non-party who had committed an abuse of process. Specifically, the trial judge referenced the decision of the Court of Appeal in 1318847 Ontario Limited v. Laval Tool & Mold Ltd., 2017 ONCA 184, where the court confirmed that Superior Courts of record have inherent jurisdiction to control their own processes and to protect them from abuse. The Court of Appeal makes clear that the Superior Court of Justice has an inherent jurisdiction which must be exercised “sparingly and with caution”. Of particular concern as it relates to the facts of this case and the egregious conduct of Manny, the Court of Appeal in Laval Tool makes clear at para. 66:. 1318847 Ontario Limited v. Laval Tool & Mould Ltd.
In particular, apart from statutory jurisdiction, Superior Courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process.
In 1318847 Ontario Limited v. Laval Tool & Mould Ltd. (Ont CA, 2017), after an extensive review of the case law respecting the court's jurisdiction (both statutory and inherent) to order costs against non-parties, it concludes that it does and usefully sets out the circumstances where it may:
(4) The Test for Non-Party Costs. Cornerstone Properties Inc. v. Southside Construction Management Limited
(i) Statutory jurisdiction
 Any assessment of whether it is appropriate to order non-party costs must begin by considering the court’s statutory jurisdiction under s. 131(1) of the CJA. This provision limits the court’s discretion to order costs against the named parties unless the “person of straw” test is satisfied.
 The “person of straw” test is satisfied if:
1. The non-party has status to bring the action; The proper inquiry under the test is whether the intention, purpose or motive of the non-party in putting the named party forward was to avoid liability for costs. The named party must have been “injected into the situation for the purpose of providing a costs screen” or “for the purpose of insulating a non-party from potential cost liability”: see Double Hitch Enterprises Ltd. (Receiver of) v. National Hockey League,  O.J. No. 1189 (Gen. Div.), at para. 2; and Truska v. Dziemianczuk,  O.J. No. 1859 (S.C.), at para. 22, cited in Hazelwood v. Hazelwood, 2013 ONSC 25 (CanLII), at para. 12.
2. The named party is not the true litigant; and
3. The named party is a person of straw put forward to protect the true litigant from liability for costs.
 I agree with the comment of Smith J. in Monenco, that “[o]ne can envision many reasons for litigating with a so called man of straw as the party, which do not include avoiding an award of costs and which include the enforcement of legitimate legal rights”: para. 22. For example, Smith J. refers to church-backed proceedings – where “the church’s principles are the real issue and motivating force behind the litigation” as potentially justifying an award of costs against a non-party, while “[m]ere financial aid by the church … does not amount to the authority required to comply with the real promoter test.”
 In the same vein, the “person of straw” test for statutory jurisdiction to order non-party costs does not allow the court to award costs against a corporate officer, director, shareholder or principal of a corporation merely because that person caused the corporation to commence litigation as the named party or because the corporation is without assets: see Rockwell, at p. 212; Television Real Estate, at p. 299; Atlantic Financial Corp. v. Henderson (2007), 2007 CanLII 19791 (ON SC), 86 O.R. (3d) 121 (S.C.), at para. 14; and Anchorage, at para. 27. As put by Veit J. in Kerr & Richard Sports Inc. v. Fulton and Pulak (1992), 133 A.R. 382 (Q.B.), at para. 14:
[O]rders for costs may not be made against the principals of corporations if the only evidence is that those principals directed the operations of the corporation. Our system recognizes the legitimacy of corporations as legal entities; one legitimate purpose of such vehicles is to shield its principals from personal liability. In order to fix principals with liability, a court is required to find much more than the usual and necessary pattern of principals who direct the affairs of the corporation. The inquiry under the “person of straw” test is not an evaluative one – it does not ask whether the non-party engaged in misconduct serious enough to amount to abuse of the court’s processes. Rather, it is a factual inquiry that asks whether the party of record is only the “formal” or “ostensible” litigant and whether the non-party is the “real” or “substantial” litigant, controlling the proceedings and advancing the named party for the purpose of deflecting liability for costs. The aim is to determine whether the non-party, as a matter of fact, functions as if it were a “party” in relation to which the court has statutory jurisdiction to order costs under s. 131(1) of the CJA, but put someone else forward to avoid costs consequences.
(ii) Inherent jurisdiction
 Superior courts of record have inherent jurisdiction to control their own processes and protect them from abuse. This was recently described by the Supreme Court in Endean v. British Columbia, 2016 SCC 42 (CanLII), 401 D.L.R. (4th) 577, at para. 23:
Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.” In particular, apart from statutory jurisdiction, superior courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process.
 That said, courts or tribunals lacking inherent jurisdiction may only order non-party costs if they have statutory jurisdiction to do so: see Graff v. 1960 Queen Street East Ltd., 2016 ONSC 4348, 89 M.P.L.R. (5th) 258 (Div. Ct.), at para. 29.
 Inherent jurisdiction must not be exercised in a manner contrary to statute, or where the legislature has used “clear and precise statutory language” to exclude it: Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 CanLII 164 (SCC),  2 S.C.R. 475, at p. 480; and R. v. Rose, 1998 CanLII 768 (SCC),  3 S.C.R. 262, at para. 64. When it is exercised, courts must do so “sparingly and with caution”: R. v. Caron, 2011 SCC 5 (CanLII),  1 S.C.R. 78, at para. 30.
 The language of s. 131(1) of the CJA does not exclude inherent jurisdiction to order costs against a non-party who commits an abuse of process. It is “permissive,” in that it confers broad discretion to make costs orders. Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which prescribes factors that the court may take into account when exercising discretion under s. 131(1) of the CJA, reinforces the breadth of s. 131(1) by stating that a court may consider “any other matter relevant to the question of costs.”
 This court has held that the similarly permissive wording of s. 105 of the CJA, which empowers a court to order a party to undergo a physical or mental examination by a health practitioner, does not contain the express language needed to exclude inherent jurisdiction to order a party to undergo an examination by someone other than a health practitioner: Ziebenhaus (Litigation Guardian of) v. Bahlieda, 2015 ONCA 471 (CanLII), 126 O.R. (3d) 541.
 Although s. 131(1) confers statutory jurisdiction to order costs against parties only, this does not undermine the provision’s permissiveness, as the provision does not explicitly prohibit the court from ordering non-party costs.
 It would be arguably unconstitutional for s. 131(1) to exclude the court’s inherent jurisdiction to order non-party costs, insofar as this power is grounded in the court’s ability to control its own processes. This ability is likely part of the core jurisdiction of superior courts protected from legislative encroachment by s. 96 of the Constitution Act, 1867: see MacMillan Bloedel v. Simpson, 1995 CanLII 57 (SCC),  4 S.C.R. 725, at paras. 27-42. It is not necessary to decide these points. But they support using the presumption of constitutionality to interpret s. 131(1) as not excluding the court’s inherent jurisdiction to deter abuse of process by ordering non-party costs: see Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC),  2 S.C.R. 1031, at paras. 12-15.
 The Supreme Court has characterized abuse of process as “the bringing of proceedings that are unfair to the point that they are contrary to the interest of justice,” or “oppressive” or “vexatious” treatment that undermines “the public interest in a fair and just trial process and the proper administration of justice”: Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII),  2. S.C.R. 227, at para. 39.
 A non-party may engage in abuse of process and attract a costs order by, as was the case in Dallas/North, initiating proceedings through a nominal plaintiff in order to oppress the defendant. Another example is provided by the British Columbia case of Oasis Hotel, in which a non-party put forward a nominal plaintiff to employ the court’s processes as an instrument to defraud the defendant.
 Some courts have held that costs against a non-party are appropriate if the non-party has engaged in conduct that amounts to the tort of maintenance: Young, at pp. 136-137; and Smith v. Canadian Tire Acceptance Ltd. (1995) 1995 CanLII 7163 (ON SC), 22 O.R. (3d) 433 (Gen. Div.), at pp. 448-449, aff’d (1995), 26 O.R. (3d) 94 (C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 12. O’Connor A.C.J.O. discussed this tort in McIntyre Estate v. Ontario (Attorney General) (2003), 2002 CanLII 45046 (ON CA), 61 O.R. (3d) 257 (C.A.), writing at para. 32 that the “fundamental aim of the law of champerty and maintenance has always been to protect the administration of justice from abuse.” I agree that, insofar as a non-party resembles a maintainer, thereby committing an abuse of process, a costs award against it may be warranted.
 Situations of gross misconduct, vexatious conduct, or conduct by a non-party that undermines the fair administration of justice other than those discussed above can be envisioned.
 Costs against non-parties who are directors, shareholders or principals of corporations may be ordered in exceptional circumstances if the non-party commits an abuse of process: see Harris Scientific Products Ltd. v. Araujo, 2005 ABQB 850 (CanLII), 382 A.R. 377, at para. 24; and Chapman Management & Consulting Services Ltd. v. Kernic Equipment Sales Ltd., 2006 ABQB 227 (CanLII), 400 A.R. 1, at para. 40. Such circumstances may include fraud or gross misconduct in the instigation or conduct of the litigation. But the injunction and authorities referred to in para. 63 of these reasons must be followed – costs should not be awarded against corporate officers, directors or shareholders simply because they directed the operations of the company: see Kerr, at para. 14.
 The court’s inherent jurisdiction to order non-party costs to prevent misconduct amounting to an abuse of process is separate from and in addition to the court’s jurisdiction to order costs against a solicitor of record under r. 57.07 of the Rules of Civil Procedure: see Galganov v. Russell (Township), 2012 ONCA 410 (CanLII), 294 O.A.C. 13, at paras. 12-22, leave to appeal to S.C.C. discontinued,  S.C.C.A. No. 382.
 Before returning to the facts of the case at hand, I acknowledge that, as a matter of procedural fairness, non-parties must be given notice of a litigant’s intention to seek a costs award against them: St. James’ Preservation Society, at paras. 48-55. The inquiry into whether there has been adequate notice is a contextual one driven by the circumstances of each case, but, in most cases, unequivocal notice of a litigant’s intention to seek costs from a non-party should be given as soon as reasonably possible prior to the hearing: see Middlesex Condominium, at para. 44.
In Cornerstone Properties Inc. v. Southside Construction Management Limited (Ont CA, 2020) the Court of Appeal endorsed the 1318847 Ontario Limited v. Laval Tool & Mould Ltd. (Ont CA, 2017) reasons on costs orders against non-parties:
 Costs can be awarded against a non-party. The jurisdiction to make that order, and the grounds on which the order can be made, were recently and thoroughly explained in 1318847 Ontario Limited v. Laval Tool and Mould Ltd., 2017 ONCA 184 (“Laval Tool”). There is no need to replough that ground in these reasons.
 Cornerstone submits the trial judge wrongly characterized its claim as an effort to pierce the corporate veil. Cornerstone further argues that, after the trial judge determined he would not pierce the corporate veil, he wrongly found he had no jurisdiction to require Southside to pay the costs ordered against 210.
 Cornerstone is correct when it argues the powers to order costs against a non-party do not depend on whether the corporate veil of the entity against whom the costs were ordered can be pierced so as to reach the non-party from whom costs are sought. It is difficult, however, to agree that the trial judge mischaracterized Cornerstone’s claim. In its pleadings, Cornerstone alleged 210 had “no substance” and that its “separate legal persona” should be ignored. By this pleading, Cornerstone effectively asked the court to look through the separate corporate identity of 210 and impose liability on Southside. It was appropriate that the trial judge address this claim in his reasons. More to the point, on the largely uncontested evidence in this case, piercing the corporate veil was the only real chance Cornerstone had to render Southside liable for the costs order imposed on 210.
 Lastly, we are satisfied that the trial judge’s characterization of the question, as one involving the piercing of the corporate veil, did not prejudice Cornerstone. Many of the considerations pertinent to that inquiry were also relevant to the existence of grounds to order Southside to pay 210’s costs.
 The appellant’s second argument, that the trial judge, having determined he could not pierce the corporate veil, wrongly held he had no jurisdiction to require Southside, a non-party, to pay the costs ordered against 210, finds support in one passage in the trial judge’s reasons (see reasons, para. 22). However, in the paragraphs that follow, the trial judge explicitly recognizes the power to impose costs on a non-party, and refers to Laval Tool, the governing authority. The trial judge goes on to identify the two bases recognized in Laval Tool for an order of costs against a non-party. The first, under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c.43, requires a finding the main plaintiff was “a person of straw” and not the actual litigant. The second, premised on the inherent jurisdiction of the court, looks to conduct by the non-party tantamount to an abuse of process. The trial judge’s reasons leave no doubt he appreciated both aspects of his jurisdiction to award costs against a non-party, and the bases upon which that order could be made.
 It is true the trial judge’s consideration of the merits of Cornerstone’s claim that Southside should pay the costs is brief. With respect, that brevity reflects the merits of Cornerstone’s claim that Southside should be responsible for 210’s costs.
 Cornerstone did not suggest that it fell within the “person of straw” criterion for making an order of costs against a non-party: see Laval Tool, at paras. 59-62. It does argue its claim meets the abuse of process criterion identified in Laval Tool, at para. 66:
In particular, apart from statutory jurisdiction, Superior Courts have inherent jurisdiction to order non-party costs, on a discretionary basis, in situations where the non-party has initiated or conducted litigation in such a manner as to amount to an abuse of process. There is no evidence Southside used 210 in any way to abuse the court’s process or engage in dishonest or vexatious conduct in respect of any litigation. Southside incorporated 210 for a specific business purpose in respect of its attempted land acquisition. 210 acquired the debenture for that purpose. It did not initiate the debenture litigation.
 It is wrong to suggest, as counsel for the appellant does in his factum, that “Southside ran Cornerstone up and down the court system twice and never relented”. Cornerstone initiated the debenture litigation and the appeals in that litigation. The history of the litigation demonstrates 210’s response to Cornerstone’s attempt to declare the debenture unenforceable was anything but an abuse of the court’s process. There were obviously legitimate issues in that litigation. Southside, by funding and directing 210’s defence, by loan or otherwise, did nothing to abuse the court’s process or undermine the fair administration of justice.
 In his supplementary submissions, counsel for the appellant gets to the real point of his submissions. He argues, that if a party has no funds to satisfy a costs order, and that party is a corporation controlled in the litigation by another corporation that does have funds, fairness and the purposes underlying costs orders dictate that the successful party should receive its costs from the directing corporate entity that has assets. This argument was rejected in Laval Tool: Laval Tool, paras. 63, 77, and runs directly against s. 15 of the Business Corporations Act, R.S.O. 1990, c. B.16. Counsel’s submissions, if accepted, would fundamentally change the accepted notions of corporate identity insofar as costs awards are concerned. It is an argument best addressed to the legislature.