Eric K. Gillespie

The Mohawks of the Bay of Quinte (MBQ) brought a motion for costs in an ongoing environmental appeal.

Due to an objection by Waste Management of Canada Corporation regarding mediation confidentiality, MBQ requested that the motion be deferred until after the main hearing.

The Tribunal granted the adjournment and ordered that the motion materials be marked confidential pending the hearing of the motion.

The applicant sought judicial review of the Ministry of Natural Resources and Forestry's alleged decision to exempt a wind farm project from compliance with the Endangered Species Act regarding the Redside Dace.

The Ministry had communicated via email that there were no Redside Dace issues in the project area, and thus the proponent did not need to apply for a permit.

The Divisional Court dismissed the application, finding that the Ministry's emails did not constitute an exercise of a statutory power of decision subject to judicial review, applying the precedent from Sierra Club.

The appellant appealed the dismissal of its claim for damages against the City for groundwater contamination caused by road salt, which allegedly prevented the development of a medical office building with underground parking.

The trial judge rejected the appellant's evidence that it actually intended to build such a development and subsequently excluded the appellant's expert evidence, which was based on that rejected factual foundation.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility findings, evidentiary rulings, or costs award.

Following a successful appeal that certified a class action against the Toronto Police Services Board, the court determined the costs of the original certification motion.

The appellant sought over $749,000, while the respondent argued for costs thrown away or no costs due to the appellant significantly reformulating her claim on appeal.

The Divisional Court held that while the appellant was entitled to costs because the case involved matters of public interest, the amount must be reduced to reflect the time spent on claims against defendants that were later abandoned.

The court fixed the costs of the original certification motion at $125,728.03 inclusive of disbursements and HST.

The moving party, Windlectric Inc., proposed a wind energy project on Amherst Island.

The Ministry of the Environment deemed the application complete, initiating the technical review phase.

The responding party, an association opposing the project, sought judicial review to quash the completeness determination, arguing the application lacked an adequate emergency response plan.

Windlectric brought a motion to quash the application for judicial review.

The Divisional Court granted the motion, finding that a completeness check is an administrative step, not a statutory power of decision or a matter subject to public law remedies.

The court also held that the application for judicial review was premature, as the administrative process and available appeals had not been exhausted.

The plaintiff appealed the dismissal of a motion to certify a class action against the Toronto Police Services Board arising from mass detentions during the 2010 G20 summit.

The Divisional Court allowed the appeal, finding that the requirements for certification under the Class Proceedings Act, 1992 were met.

The court certified two separate class actions: one for five location-based subclasses who were allegedly arbitrarily detained by police cordons, and another for individuals held at a specially created detention centre.

The moving parties and responding parties both brought motions under s. 21(5) of the Courts of Justice Act to vary or set aside an earlier order that denied a stay of a Renewable Energy Approval but granted an injunction subject to an undertaking as to damages.

The Divisional Court held that Rule 63.02 does not confer jurisdiction to stay a Renewable Energy Approval, as it is not an 'order' within the meaning of the rule.

The court found no error in the motion judge's exercise of inherent jurisdiction to grant injunctive relief under Rule 40 instead.

Both the motion and cross-motion were dismissed.

Suncor Energy Products Inc. brought an application to quash several municipal by-laws passed by the Town of Plympton-Wyoming that restricted the development of a wind farm project.

The court found that By-Law 50 of 2012 was invalid for vagueness and uncertainty, and conflicted with provincial legislation regarding renewable energy approvals.

The court also quashed portions of By-Law 6 of 2012 relating to building permit fees and security deposits, and portions of By-Law 75 of 2012 imposing development charges for wind turbines, finding them ultra vires.

The court declared that the Town's zoning by-laws passed under the Planning Act did not apply to the renewable energy undertaking.

The successful appellants, Ostrander Point GP Inc. and the Director of the Ministry of the Environment, sought costs following their successful appeal of an Environmental Review Tribunal decision regarding a wind turbine development.

The respondents, Prince Edward County Field Naturalists (PECFN) and Alliance to Protect Prince Edward County (APPEC), argued that no costs should be awarded as it was public interest litigation.

The Divisional Court applied the five-factor test for public interest litigation and concluded that costs should be awarded, as the respondents had a direct interest and the appellant was a private actor.

The court fixed costs at $40,000 against PECFN and $10,000 against APPEC, plus transcript disbursements.

The moving party, Prince Edward County Field Naturalists, sought to stay an order of the Divisional Court that reinstated a renewable energy approval for a wind energy project.

The project overlapped with the habitat of the endangered Blanding's turtle.

The Court of Appeal applied the RJR-MacDonald test and found that the proposed appeal raised serious issues of first impression in environmental law.

The Court also found that the moving party would suffer irreparable harm if the habitat was destroyed before the appeal could be heard, and that the balance of convenience favoured granting the stay.

The motion for a stay was granted.

The appellant, a farm implement dealer, appealed the non-renewal of its dealer agreement by the respondent manufacturer.

The Tribunal found that the respondent breached the Farm Implements Act and Ontario Regulation 123/06 by failing to provide the required written notice with full reasons and an opportunity to cure before deciding not to renew the agreement.

The Tribunal determined that the regulation applied retrospectively to the existing contract, removing the respondent's unfettered right to not renew.

The Tribunal awarded the appellant damages for loss of profits based on a two-year reasonable notice period and for obsolete assets, totaling $139,846 plus pre-judgment interest.

The Divisional Court heard three appeals from an Environmental Review Tribunal decision regarding a Renewable Energy Approval for a wind turbine project at Ostrander Point.

The Tribunal had revoked the approval, finding the project would cause serious and irreversible harm to Blanding's turtles, but dismissed appeals regarding harm to birds, alvar, and human health.

The Court allowed the appeal by the project developer and the Ministry of the Environment, finding the Tribunal's decision on Blanding's turtles was unreasonable as it lacked evidence on population size, failed to properly consider the developer's Endangered Species Act permit, and breached procedural fairness in determining the remedy.

The Court dismissed the cross-appeals regarding birds, alvar, and human health, finding the Tribunal's conclusions on those issues were reasonable.

Following a status hearing in a civil action, the court addressed costs after the plaintiff’s counsel failed to appear and had not responded to repeated correspondence from defence counsel.

The court noted that the plaintiff’s lawyer provided no explanation for the non‑appearance or lack of communication and that such conduct demonstrated disrespect toward both opposing counsel and the court.

While the court had authority under Rule 48.14 of the Rules of Civil Procedure to dismiss the claim, it declined to do so but warned that the plaintiff’s claim was placed in jeopardy.

Taking into account the defendant’s preparation, travel time, and the possibility that some preparation could be reused if the hearing were renewed, the court reduced the requested amount.

Costs of $4,000 inclusive of disbursements and HST were awarded to the defendant.

The appellant, Inco Limited, appealed a costs order awarding it $1,766,000 following its successful defence of a class action at the Court of Appeal.

Inco argued it was entitled to over $5.3 million and that the trial judge erred by reducing its legal fees and applying a 50 per cent discount under s. 31(1) of the Class Proceedings Act.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's determination that the environmental tort class action raised novel points of law and involved matters of public interest.

The court upheld the trial judge's methodical and reasonable costs analysis.

Following a trial in which the defendant was entirely successful despite having admitted liability, the court addressed the issue of costs.

The plaintiff had sought millions of dollars in damages but ultimately proved none at trial.

The defendant sought costs of $498,815.97, including partial indemnity fees up to April 21, 2010 and substantial indemnity fees thereafter based on unaccepted offers to settle.

The court found the amount fair and reasonable given the complexity of the damages theory advanced by the plaintiff, the unnecessary lengthening of the trial, and the plaintiff’s failure to accept settlement offers that should have been accepted.

Full costs in the amount claimed were awarded to the defendant.

Following the dismissal of a motion to certify a class proceeding related to policing during the G20 Summit, the court determined the costs payable to a successful defendant.

The plaintiff argued that no costs should be ordered because the case raised novel legal issues and matters of public interest.

The court held that although the action involved issues of public interest, the certification motion was seriously flawed and the novelty argument was unfounded.

Applying the governing principles for class proceeding costs and considering comparable certification cost awards, the court concluded that a reduced costs award was appropriate.

Costs were fixed at $200,000 in fees plus disbursements and applicable taxes, payable by the plaintiff and indemnified by the Class Proceedings Fund.

The Municipality of North Middlesex appealed two decisions of the Environmental Review Tribunal regarding a Renewable Energy Approval under the Environmental Protection Act.

The Tribunal had struck the Municipality's Notice of Constitutional Question and refused to grant it public interest standing.

The Divisional Court dismissed the appeal, finding that the Tribunal correctly applied the law, did not err in principle, and provided compelling reasons.

Following summary judgment dismissing two civil actions related to a proposed wind project, the successful defendants sought costs on a partial indemnity basis under Rule 57.01 of the Rules of Civil Procedure.

The plaintiffs argued that no costs should be awarded due to alleged novelty of the legal issues, broader public importance, assistance to future litigants, alleged reliance on unsworn materials, and the plaintiffs’ financial hardship.

The court rejected these submissions, holding that the claims were premature and unsupported by the evidentiary record, and that none of the factors justified departing from the usual rule that costs follow the event.

The court emphasized that unsuccessful litigants cannot avoid costs merely because their claims may generate guidance for future cases.

Costs were awarded as claimed by the defendants.

The plaintiff sought to certify a class action against multiple police services and government entities regarding mass arrests and detentions during the 2010 G20 Summit in Toronto.

The court dismissed the certification motion, finding that while some causes of action (like false imprisonment and battery) were properly pleaded against the Toronto Police Services Board, the claims against other defendants failed.

Crucially, the plaintiff failed to satisfy the identifiable class, common issues, and preferable procedure requirements of the Class Proceedings Act due to the highly variable individual conduct of protesters and the impermissible use of subclasses.

The respondent Moose Cree First Nation brought a motion to strike portions of a judicial review application and supporting affidavit filed by the MoCreebec Council of the Cree Nation regarding a hydroelectric project.

The parties resolved several issues, including the removal of Charter and Aboriginal rights claims.

The court deferred a decision on striking hearsay evidence in the affidavit pending further information.

Given the complexity and public policy implications, the court referred the remaining issue of the applicant's capacity to bring the application to a full panel of the Divisional Court.