Court File and Parties

COURT FILE NO.: 275/07 DATE: 20071019

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: NICHOLS GRAVEL LIMITED Applicant

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HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF ONTARIO, DAVID RAMSEY, ALEC DENYS, PAUL CUTMORE, STUART THATCHER, GARY ZACHER, EMMILIA KUISMA, ERIC D’HONDT AND JOHN HAMILTON Respondents

BEFORE: CARNWATH, SPIES & NEWBOULD JJ.

COUNSEL: Paul J. Osier, for the Applicant Dennis Brown & Connie Vernon, for the Respondent, Her Majesty the Queen in the Right of the Province of Ontario,

COSTS ENDORSEMENT

CARNWATH J.:

[1] The above application for judicial review was heard on August 16, 2007, immediately following the dismissal of an appeal brought by Nichols Gravel Limited in Divisional Court File No. 276/07.

[2] The dismissal of the appeal rendered the application for judicial review moot and Nichols Gravel Limited withdrew its application for judicial review.

[3] Her Majesty the Queen seeks costs on a substantial indemnity basis of $10,000, plus $4,000 for disbursements.

[4] This was the second judicial review application brought by Nichols Gravel Limited contesting the legitimacy of the conditions imposed on its quarry license by the Ontario Municipal Board (“OMB”) in September of 2000.

[5] The applicant’s failure to satisfy the conditions led the Minister to suspend its license in April, 2003 and to issue a Notice of Revocation in October, 2004. The Applicant subsequently appealed this decision to the OMB and initiated the first judicial review. The judicial review decision of Justice Reilly in June, 2006 affirmed the legitimacy of the conditions. The appeal before the OMB in September, 2006 arrived at a similar conclusion, and upheld the Minister’s decision to revoke the quarry license.

[6] The applicant continued to operate its quarry without a license and in defiance of the above-mentioned decisions. On October 17, 2006, the Minister filed a motion for an interlocutory injunction restraining the applicant from operating a quarry. On November 7, 2006, Justice Marshall affirmed the legitimacy of the conditions and granted injunctory relief.

[7] In November, 2006, the applicant commenced an appeal of the OMB’s September, 2006 decision to the Divisional Court. Again, the appeal contested the legitimacy of the conditions imposed by the OMB. On August 16, 2007, immediately before the second judicial review was to be heard, the Court rejected the applicant’s appeal.

[8] We agree with the Crown submission that the second judicial review was unnecessary for a variety of reasons. The application was commenced before Nichols Gravel Limited had exhausted its statutory right of appeal of the Minister’s order. The applicant continued with the second judicial review application even though the central issue, the legitimacy of the conditions imposed by the Minister, had been determined by Reilly J. in the first judicial review, by Marshall J. on the injunction and by the OMB on the appeal taken to it. The applicant was aware or should have been aware that it was re-litigating issues and that it was unnecessary to continue with the second judicial review whilst the statutory appeal processes remained open in File No. 276/07. The conduct of the applicant must attract a costs award of substantial indemnity.

[9] We reject Nichols Gravel’s submission that “the fact that preparation had to be done for both a Judicial Review Application and an Appeal in Divisional Court was caused by Divisional Court itself refusing to make a decision as to which to proceed with”. It was Nichols Gravel that made the decision to proceed with the two routes in tandem. We agree that the Crown’s costs should be awarded on a substantial indemnity scale and fix them at $10,000 for fees and $4,000 for disbursements, inclusive of G.S.T., payable thirty days.

CARNWATH J.

SPIES J.

NEWBOULD J.

DATE: 20071019