Group that challenged health orders in court won't have to pay Manitoba's legal fees

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Court of Queen’s Bench Chief Justice Glenn Joyal has ruled the group that brought forward a constitutional challenge against Manitoba’s public health orders will not have to pay the province’s legal fees.

Joyal’s ruling comes after the group of seven churches and three individuals lost their challenge last year when the judge ruled Manitoba’s health orders were neither unconstitutional nor an undemocratic delegation of power.

Ordinarily, the losing party pays the legal costs of the successful party. However, in this case, the two parties could not agree on costs and asked the court to make a determination.

According to Joyal’s decision, which was delivered on Feb. 1, the applicants argued that given the context of the pandemic, their status as public litigants, and the public nature interest of the legal issues at hand, they shouldn’t have to pay the costs.

The group said its applications were in “the broader public interest” and extended beyond the immediate interests of those involved.

The applicants argued that having to pay the costs would send the wrong message to Manitoba who have “genuine concerns about the constitutional justification for acknowledged breaches to their Charter rights during the pandemic.”

They said they were not only defending their own constitutional position, but also the rights and freedoms of their fellow citizens.

The province disagreed, contending that this case is not of pure public interest litigation.

“Indeed, Manitoba notes that certain of the applicants engaged in acts of civil disobedience,” the court documents said.

Manitoba argued that the group’s “own conduct revealed a shotgun and complicating ‘strategic litigation approach’ that is particularly deserving of cost consequences.”

The province also said the applicants made the case more complex than necessary and were motivated by personal interests. The province also noted that Manitoba was forced to divert some of its resources away from fighting the pandemic to battle this litigation challenge.

In his decision, Joyal said special factors do exist to warrant the departure from the ordinary rule of the losing party paying the fees,

He said the proceedings did involve issues of public interest that went beyond the interests of the applicants.

Joyal’s decision noted that evidence at the hearing gave the public an important look into the “inner workings of the COVID-19 public health response and into how the various testing, modelling, and science generally, was properly used to justify significant public health restrictions during the COVID-19 pandemic.”

- With files from CTV’s Josh Crabb.