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Civil Litigation Case Dicta - Costs - Repair

. Henry and Dey v. Toronto District School Board

In Henry and Dey v. Toronto District School Board (Div Court, 2023) the Divisional Court assessed JR costs where there were corrective measures by a public authority (here, a school board):
[6] TDSB denies the applicants are entitled to any costs and instead claims its own costs for the time spent on the abandoned application. It submits that it communicated detailed information to the applicants and other members of the public in April 2023. The communications included FAQs and a link to a web page that provided information about the admissions process and the remedy it was implementing. In its submission, given the detailed information provided, it was unreasonable for the applicants to pursue the application.

[7] In our view, the applicants are entitled to costs from the TDSB. Where a public authority takes steps that obviate the need for a court challenge because the applicants achieved the results they sought, the applicants may be entitled to their costs: Broomer v. Ontario, 2004 CanLII 27253 (ON SCDC), at para. 11. While we do not express any view on the merits of the application, the TDSB’ rectification steps ultimately satisfied the applicants’ concerns. However, the TDSB did not clearly communicate its solution to the public and applicants prior to the filing of its responding material. The TDSB’s communications, FAQs and web page did not directly state the TDSB was creating new spaces. While they provided details of the total spaces that would be available to equity-deserving students and the resulting proportion of spaces they would therefore fill, the information never clarified in which schools the spaces would be made available. It was not clear that the equity-deserving students would have access to the desirable schools that were otherwise full.


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