Over 100 people opposed to the City of Hamilton's COVID vaccination mandate for municipal staff protested at the May 25, 2022, Hamilton City Council meeting Credit: Joey Coleman

Superior Court Justice Joseph Henderson says both sides in the challenge against the City’s COVID vaccination policy for non-unionized employees shall pay their own costs.

In a costs decision released on Tuesday (published on CanLII Thursday), the court notes both sides split their victories in the case.

This follows an earlier decision to dismiss the employees’ challenge for mootness after the City suspended its COVID vaccination policy.

“I find that the applicants achieved some success with their application. The applicants had criticized the vaccination policy as being unlawful. They retained counsel, entered into negotiations, and commenced litigation. The net result of the applicants’ effort was that the City, as of August 12, 2022, amended its policy to suspend the alleged unlawful portion of the policy. I recognize that the applicants did not have complete success on their application as the policy was suspended, not revoked, but the applicants certainly achieved significant success,” he ruled.

The Justice ruled the applicants were entitled to cost up to August 12, with the City entitled to cost after that date.

He ruled that cost awards between the two sides are “in rough terms, a set-off” and each side shall bare its own costs.

The Justice did not the City’s costs were higher than necessary.

“The City’s costs outline shows that two senior lawyers were involved in this case at almost every stage of the motion. In my opinion, two senior lawyers were not necessary for this motion. The use of two counsel created a duplication of services and increased the overall costs. I accept that the City may choose to have two lawyers involved at each stage, and the City has the right to make that decision for itself, but the losing party should not reasonably be expected to pay for two lawyers at every stage.”

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Published: December 15, 2022
Last edited: December 15, 2022
Author: Joey Coleman
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