Court fight over Hamilton municipal worker vaccine policy leaves both with legal tab


Published December 15, 2022 at 2:09 pm

Both sides in a court case that challenged the City of Hamilton employee COVID-19 vaccination policy wanted costs, and a judge has told everyone they’ll get nothing and like it.

The city, in an effort to increase the layers of protection and public safety during the COVID-19 pandemic, had a mandatory vaccine verification policy from August 2021 until Aug. 12, when it was suspended. Eleven non-union employees had taken the city to court over the policy, in hope of obtaining a declaration that the policy violated their human rights, privacy rights, right to bodily autonomy and the Canadian Charter of Rights and Freedoms.

Their application was filed just nine days before the city paused the policy. In October, Justice Joseph R. Henderson of the Ontario Superior Court accepted a subsequent motion by the city to dismiss the “now moot” application, taking the rights tests out of play. However, each side filed for costs, where one side has to pay for the other’s lawyer(s).

“Both the City and the applicants submit that the conduct of the opposing party unduly lengthened the proceedings and thus increased the costs,” Justice Henderson notes in a costs decision handed down on Tuesday (Dec. 13).

The judge, in possibly oversimplified terms, found that the applicants’ settlement offer was a bit much. In mid-September, their counsel offered to take a cost settlement of $15,000, roughly double the $7,000-$8,000 the court determined they should have received.

“The applicants’ offer to settle dated September 15, 2022, was an offer to discontinue the application if the City would discontinue the motion upon payment to the applicants of costs in the amount of $15,000,” Henderson wrote. “In my view, this was an excessive request for costs by the applicants.”

But the jurist believed the city committed some overkill by putting a pair of senior lawyers on the case. That led Justice Henderson to knock one-third off the $11,593 partial indemnity which the city believed it deserved. That put the city’s entitlement in roughly the same ballpark with the litigants.

“The City’s costs outline shows that two senior lawyers were involved in this case at almost every stage of the motion,” he writes. “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.”

Ultimately, that created a “set-off,” and both sides are on the hook for the billable hours.

“I order that there will be no costs paid by either party for the application or for the motion,” Henderson wrote.

Applicants had ‘some success’

Almost all municipalities across Canada instituted vaccine verification policies for employees throughout 2021 and early 2022. Hamilton retained the police longer than most cities.

One of the 11 applicants, Zorka Milovanov, was the executive assistant to Ward 7 Coun. Esther Pauls, according to a report in The Public Record.

In January, Pauls and then-Ward 14 Coun. Terry Whitehead were the only councillors who voted against the vaccine policy.

While the applicants’ human rights claims were not considered in court, Justice Henderson noted they essentially did attain a reasonable facsimile of their goal.

“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.”

Earlier this month, the city revised its vaccine policy. It now only a condition of employment for employees of Hamilton Paramedia Service, long-term care lodges and the Red Hill Child Care Centre, and new hires in those areas.

Presently, COVID-19 spread in Hamilton is “moderate and stable” and influenza spread is “moderate and descreasing.”

Just more than half of Hamiltonians, 50.1 per cent, have had two jabs (the “primary series”) and at least one booster dose. Just more than 1 in 5, 21.8 per cent, are double-boosted.

The rationale for the “set-off” costs decision may be read at

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