ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Before: wilson, swinton and bellamy jj.
B E T W E E N:
LAKE WASEOSA RATEPAYERS’ ASSOCATION Responding Party in OMB Review Motion (Appellant in Appeal)
- and -
SYBILLE PIEPER and THE DISTRICT MUNICIPALITY OF MUSKOKA Moving Parties in OMB Review Motion (Respondents in Appeal)
Counsel
Chris G. Paliare, for the Lake Waseosa Ratepayers’ Association Alstair H. A. Burton, for Sybille Pieper David G. Royston, for the District Municipality of Muskoka
HEARD at Toronto: December 1, 2008
Oral Reasons for Judgment
janet wilson J.: (Orally)
The Issue
1The parties have made vigorous submissions with respect to costs of the motion for leave to appeal, the perfection of the appeal and the costs of today’s appearance.
Disposition
2In our view, the appropriate order in all the circumstances is that there should be no order as to costs.
Background
3The results of the motion for leave to appeal argued before Molloy J. dated February 25, 2008 were divided. She granted leave to appeal on three of five grounds for appeal raised.
4Before the motion was heard by Molloy J., the Muskoka District Official Plan was updated, affecting this and other applications. As well, at the time of the Reconsideration Hearing on August 28, 2007, there was evidence with respect to the phosphate levels in Lake Waseosa indicating that the over threshold classification may be in question. This was evidenced by the affidavit of Judi Brouse dated July 10, 2007.
5Tests conducted during the summer of 2008 confirmed that Lake Waseosa was in fact under threshold. Its designation as an under threshold lake was made official on October 14, 2008 by way of a resolution of the Muskoka District Council. As a result of the reclassification of the lake, this appeal became moot.
6Counsel were made aware of the decision of Muskoka District Council. Ms. Pieper withdrew her application before the OMB on November 4, 2008.
Conclusions
7We therefore conclude:
(i) There should be no order as to costs with respect to the motion for leave to appeal. The results of the motion for leave to appeal were divided. As well, we are not in any position today to determine the merits of the appeal. Costs for the leave to appeal motion as per the endorsement of Molloy J. would have followed the event.
(ii) Similarly, we conclude that there should be no costs with respect to the perfection of the appeal until November 4, 2008. Again, we cannot determine the merits or outcome of the appeal. This appeal became moot through external circumstances and certainly through no fault of either of the respondents. In these circumstances it would not be appropriate to hold them responsible for costs.
(iii) After November 4, 2008, when Ms. Pieper withdrew her application before the OMB, this appeal was clearly moot. In our view, after this date, each party should be responsible for its own costs.
(iv) We conclude that it was reasonable to argue the issue of costs today in person and that each party should bear the costs of today.
JANET WILSON J.
SWINTON J.
BELLAMY J.
Date of Reasons for Judgment: December 1, 2008
Date of Release: December 8, 2008
COURT FILE NO.: 430/07
DATE: 20081204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Before: wilson, swinton and bellamy jj.
B E T W E E N:
LAKE WASEOSA RATEPAYERS’ ASSOCATION Responding Party in OMB Review Motion (Appellant in Appeal)
- and -
SYBILLE PIEPER and THE DISTRICT MUNICIPALITY OF MUSKOKA Moving Parties in OMB Review Motion (Respondents in Appeal)
ORAL REASONS FOR JUDGMENT JANET WILSON J.
Date of Reasons for Judgment: December 1, 2008
Date of Release: December 8, 2008