COURT FILE NO: DC-04-000652-00
DV652/04
DATE:20050603
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RONALD NOLAND and BURPEE ET AL.
BEFORE: The Honourable Mr. Justice R.G.S. Del Frate
COUNSEL: Ronald Noland – self-represented
Burpee et al. - Kelly Gravelle
E N D O R S E M E N T
[1] The Respondents “Burpee” seek their costs following the successful defence to the Application brought by the Applicant “Noland”. Theirs costs total $30,497.12 including disbursements and G.S.T.
[2] Noland argues that no costs ought to be payable since what he did was an important public issue that required review due to the alleged misconduct on the part of Burpee and in particular, Bonnie Jean Bailey. It is important that citizens have confidence in the electoral system. His attempt to right a perceived wrong should not be penalized when one considers his reasons for bringing this Application.
[3] Further, citizens should not be discouraged from raising legitimate concerns on public issues from fear of being forced into bankruptcy if they are not successful.
[4] Lastly, it was Burpee who precipitated all of these expenses since they failed to respond and negotiate an amicable resolution to the two offers presented by Noland early on in the proceedings.
[5] I need not re-iterate the facts of this Application since they are set out in my earlier Reasons. Costs are at the discretion of the judge and such discretion must be exercised judicially. I must take into account the factors enunciated in Rule 57.01(1) of the Rules of Civil Procedure.
[6] The relief being sought was not monetary. Although time was required to prepare the documentation, the issues were not complex but they were important to both parties. Firstly, to Burpee since the integrity of its actions was being questioned. Secondly, to Noland and to the community since the integrity of the system was questioned. Lastly, I must consider the conduct of the parties.
[7] It is obvious that upon being served with the Application, Burpee entered into a litigation mode and did not seek to explore any resolution to a proceeding that was going to be expensive and protracted. Noland did submit two offers in an attempt to resolve the matter. In them, he points out his concerns about the process and the costs of contesting this Application.
[8] Burpee replied to the offers but rejected Noland’s offers without at any time making a counter offer that could probably have been accepted by Noland. Surely, some discussion could or should have taken place before this procedure was embarked upon. After all, it was a concerned citizen that was raising these issues and Council could have benefited from a proper investigation of the issues.
[9] I conclude that Noland’s Application was necessary even though he was not successful. Considering all of the factors, I exercise my discretion by not awarding costs to Burpee. As well, considering the circumstances, no costs are awarded to either party for today’s attendance.
[10] I should mention that if costs had been awarded to Burpee, I would have set them at $6,000 plus G.S.T. The amounts claimed by Burpee are total indemnity as opposed to partial indemnity. There are numerous hours being claimed that would not have been payable by the other side and are properly payable by the client itself.
Robert G.S. Del Frate
Superior Court Justice
Released: June 3, 2005