Jane Scholes

The applicant, having been entirely successful in the underlying application, sought partial indemnity costs of $89,703.50.

The respondent argued for no costs or a maximum of $50,000, citing the applicant's failed allegation of bad faith.

The court noted that much of the parties' submissions were not directed to the determinative issue, which the court identified independently based on the Agreement of Purchase and Sale.

The court also questioned the necessity of multiple counsel.

Costs were awarded to the applicant in the reduced amount of $68,407.68 plus HST.

The applicant purchaser and respondent vendor entered into an Agreement of Purchase and Sale for land in Markham.

The agreement required the vendor to obtain a severance at its sole expense, unless the conditions imposed were 'onerous or unreasonable'.

The Committee of Adjustment granted the severance subject to the condition that the owner sign a Cost Sharing Agreement and pay $407,582.

The vendor argued this was onerous and unreasonable, while the purchaser argued it was the vendor's responsibility.

The court interpreted the agreement, specifically the zoning clause, and found that the parties intended for the land to be rezoned and operational at the time of sale, which required the cost sharing payment.

The court held the condition was not onerous or unreasonable and ordered the vendor to repay the $407,582 to the purchaser.