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No costs awarded where application outcome reflected clearly divided success.
Following an application challenging the legality of a municipal by-law authorizing an agreement with a conservation organization to use an unopened road allowance for a public trail, the court had previously found the by-law illegal for failure to comply with municipal notice requirements but declined to quash it, dismissing the application.
The parties subsequently made written submissions on costs.
The applicants argued they achieved primary success because the by-law was declared illegal, while the municipality and the added party sought costs or alternatively no costs due to divided success.
The court held that success on the application was clearly divided because the by-law was found illegal yet remained in force.
Exercising its discretion under the Rules of Civil Procedure, the court ordered that each party bear its own costs.
Illegal municipal by-law upheld where applicant failed to show consequences warranting quashing.
Property owners applied under s. 273(1) of the Municipal Act, 2001 to quash a municipal by-law authorizing an agreement allowing the Bruce Trail Conservancy to use an unopened road allowance for a footpath adjacent to the applicant’s property.
The court found the municipality failed to comply with its own notice by-law because the notice was posted on the municipal website for only one week rather than the required two weeks and the newspaper notice was improperly placed and incomplete.
The court therefore concluded the by-law was illegal because it was not passed in accordance with the municipality’s notice requirements.
However, exercising its discretion under s. 273(1), the court declined to quash the by-law due to the absence of evidence regarding consequences of the illegality or impact on the applicant.
The application was dismissed.
