COURT OF APPEAL FOR ONTARIO

DATE: 20260112

DOCKET: COA-24-CV-0965 & COA-25-CV-0172

Hourigan, Sossin and Pomerance JJ.A.

BETWEEN

West Whitby Landowners Group Inc.

Applicant (Appellant)

and

Elexicon Energy Inc. and Ontario Energy Board

Respondents (Respondents)

Christopher Lee and Kiren Purba, for the appellant

Laura M. Wagner, Teagan Markin and Brianne Taylor, for the respondent Elexicon Energy Inc.

M. Philip Tunley and Flora Yu, for the respondent Ontario Energy Board

Heard: October 6, 2025

On appeal from the order of the Divisional Court (Associate Chief Justice Faye E. McWatt, Justices Kendra D. Coats and Lise G. Favreau), dated February 24, 2022, with reasons reported at 2022 ONSC 1035 , dismissing an application for judicial review from the Ontario Energy Board (COA-25-CV-0172).

On appeal from the order of Justice Suzan Fraser of the Superior Court of Justice, dated October 16, 2024, with reasons reported at 2024 ONSC 4338 (COA-24-CV-0965).

COSTS: REASONS FOR DECISION

[ 1 ] By judgment dated December 1, 2025, we allowed the appeal against the Divisional Court’s order dismissing the appellant, West Whitby Landowners Group Inc. (WWLG)’s application for judicial review on jurisdictional grounds. In light of that outcome, we declined to consider WWLG’s additional appeal of the decision of the Superior Court dismissing its application, brought after its unsuccessful judicial review.

[ 2 ] In the decision, we stated there would be no costs in relation to the Ontario Energy Board’s participation in the appeal.

[ 3 ] The remaining issue of costs was left to be heard in writing, and counsel have now provided their written submissions on costs.

[ 4 ] As the successful party, WWLG is entitled to its costs of the appeal. For the reasons set out below, I would fix those costs at $74,171, all inclusive.

[ 5 ] WWLG seeks partial indemnity costs of $90,617 in this court and of $89,390 in the courts below, for a total of $180,008. [1] This can be broken down as follows: a) $49,259, for the appeal of Divisional Court order, b) $41,359 for the appeal of the Superior Court order, c) $38,000 for its costs of the judicial review application, and d) $51,390 for the Superior Court application and motion.

[ 6 ] The respondent, Elexicon Energy Inc. (Elexicon), takes no issue with the partial indemnity costs claimed by WWLG in its bill of costs in relation to the Divisional Court appeal ($42,171.50). [2]

[ 7 ] With respect to the costs of the judicial review before the Divisional Court, which were awarded to Elexicon in the agreed upon amount of $32,000, Elexicon argues that, while the costs awarded in favour of Elexicon on the Divisional Court application should be reversed, any further costs award in that proceeding should be left to the Divisional Court panel to decide after the judicial review has been adjudicated on its merits.

[ 8 ] WWLG submits that the costs award to Elexicon by the Divisional Court was based on findings that this court has now rejected. WWLG argues that those costs should be reversed and that WWLG is entitled to its costs of the judicial review.

[ 9 ] With respect to the costs of the appeal of the Superior Court application and the application itself, Elexicon submits that there is no basis for this court to reverse the costs award in favour of Elexicon in relation to the Superior Court proceeding. According to Elexicon, pursuing that application before the resolution of WWLG’s appeal of the Divisional Court order was a “strategic choice” on the part of WWLG, for which it should bear the resulting costs.

[ 10 ] WWLG contends that its Superior Court application “flowed directly” from the Divisional Court’s dismissal of its judicial review application. Therefore, the costs related to the Superior Court application should be included in the costs award.

[ 11 ] In our view, WWLG is entitled both to its partial indemnity costs of the appeal (which, based on the bill of costs, we would fix at $42,171, all inclusive), and its costs of the judicial review (in the amount of $32,000, all inclusive, which was agreed upon in the Divisional Court).

[ 12 ] We do not accept that WWLG also is entitled to its costs of the Superior Court application or the appeal of that application, which was not reached by this court in its judgment on the appeal. There was no basis on which WWLG was compelled to bring that application, rather than waiting for the outcome of its appeal of the Divisional Court decision, and no reason it should not bear the costs for having chosen to do so.

[ 13 ] For these reasons, WWLG is entitled to costs from Elexicon in the overall amount of $74,171, all inclusive.

“C.W. Hourigan J.A.”

“L. Sossin J.A.”

“R. Pomerance J.A.”

[1] This is an approximate total that omits the cent values in the parties’ submissions and bills of costs.

[2] In its costs submissions, WWLG claimed $49,258.60 in partial indemnity costs in relation to the appeal of the Divisional Court order. However, in its attached Bill of Costs dated October 6, 2026, WWLG claimed $42,171.50.