The Applicant sought double Column 5 Schedule C Costs related to three Decisions addressing the COVID-19 mask mandates (the “Decisions”). The Court held that the Applicants were substantially successful in the Decisions, thereby entitling them to Costs. The Court found that the Respondent had engaged in misconduct throughout the Decisions, including that Justice Minister Shandro’s Evidence Act certificate was misleading, that the Respondent wrote to the Court without advance notice to opposing counsel or providing opposing counsel a copy, by rearguing issues that the Court had already decided, and by engaging in “wasteful” and “obstructionist conduct in the litigation.” Justice Dunlop also noted that Rule 3.19(1)(b) specifically permits a person whose Decision is subject to Judicial Review to provide a written explanation as to why the Notice could not be complied with. While Dr. Hinshaw did that in the final version of the Certified Record, she could and should have done that to begin with.

The misconduct of the Respondent supported an increase in Costs. The Court noted that nearly all the Rule 10.33(2) factors were engaged. Further, that the Respondent was the provincial Crown was relevant to Costs because, as a frequent litigator, the Crown should “scrupulously” comply with the Rules and standard of conduct for litigants. In the result, the Applicant was awarded the full Costs it sought, being $101,790.