Ford argued Mr. Madger was pursuing a political agenda when he brought the case against him. Mr. Madger argued he was acting in the public interest. The Divisional Court agreed with Mr. Madger, finding that Mr. Madger was a public interest litigant. As such, the Court ruled it would be improper to order Mr. Madger to pay Ford’s costs.
This decision is important more for what it didn’t do than for what it did do. What it didn’t do is create a precedent for public officials being awarded exorbitant cost awards against citizen public interest litigants. A decision awarding Ford costs could have had an extreme chilling effect on such litigants, effectively terrorizing citizens into silence and submission when officials commit dubious acts. If the Divisional Court had ruled otherwise, the fear of being ordered to pay bank-breaking costs if they lost their case could have muzzled any citizen who would seek to uphold the public interest.
The Divisional Court’s decision defended the rights of citizen’s to hold their public officials to account and protected such citizen’s from being silenced for fear of punishing cost orders. Ford has said of the decision: “It’s ridiculous. I won it fair and square.” While it’s true that in Canada we typically have a loser pays costs system, this was not the typical case.
Although to say Mr. Madger has lost the case against Ford may be jumping too far ahead. Mr. Madger and his attorney have sought leave from the Supreme Court to appeal the ruling which restored Ford to office.
One ground by which leave may be sought is where the issue is of public importance. This adds to the significance of the Divisional Court’s decision not to award costs against Mr. Madger. In one fell swoop the Divisional Court’s ruling refused to create a chilling effect on public interest litigation and reinforced the contention that Mr. Madger is a genuine public interest litigant, supporting the grounds under which leave to appeal to the Supreme Court is sought.
Citizens deserve to have the chance to hold their public officials to account without fear of reprisal. Ford does not seem to agree. And why would he? To be accountable means simply to be responsible to other people for one’s own poor behaviour. With a track record like Ford’s, it’s doubtful there could be anything more frightening than to be accountable to the citizens he purports to govern. Numerous political luminaries have noted that transparency and accountability are vital pillars to good democratic government. Though Ford has an apparent willingness to dispose of these pillars with little or no thought, it is encouraging to know that the judiciary is not similarly inclined.