ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

COURT FILE NO.: 122/08
DATE: 20091201

RE: Municipal Property Assessment Corporation (Appellant) v. BCE Place Limited, 1225209 Ontario Limited, National Trust Company, Scotia Realty Limited, First Place Tower Inc., Toronto Dominion Centre, 200 Bay Holdings Inc. and City Of Toronto (Respondents) and Atikokan, Brant, Ear Falls, Goderich, Lambton, Lincoln, Ottawa, Quinte West, Red Lake, Sarnia, South Bruce Peninsula and Windsor (Intervenors)

COURT FILE NO.: 126/08

RE: City of Toronto (Appellants) v. BCE Place limited, 1225209 Ontario Limited, National Trust Company, Scotia Realty Limited, First Place Tower Inc., Toronto Dominion Centre, 200 Bay Holdings Inc. and City of Toronto (Respondents) and Atikokan, Brant, Ear Falls, Goderich, Lambton, Lincoln, Ottawa, Quinte West, Red Lake, Sarnia, South Bruce Peninsula and Windsor (Intervenors)

BEFORE: Carnwath, Jennings and Pardu, JJ.

COUNSEL: Carl B. Davis and Donald G. Mitchell, for the Appellant, Municipal Property Assessment Corporation

Richard Poole and David Fleet, for the Respondents, BCE Place Limited, 1225209 Ontario Limited, National Trust Company, Scotia Realty Limited and First Place Tower Inc.

Jeff G.Cowan, for the Respondent, Toronto Dominion Centre

Phillip L. Sanford and Tara Piurko, for the Respondent, 200 Bay Holding Inc.

Diana Dimmer, Susan Ungar and W. Terrance Denison, for the Respondent, City of Toronto

John L. O’Kane, for the Intervenors

E N D O R S E M E N T_ON_COSTS

The issue of costs remains.

The City of Toronto claims fees of $60,000 plus counsel fees of $10,500 for the three days required to argue the appeal and one full day for the argument of the leave application.

Municipal Property Assessment Corporation claims fees of $97,772.60 and counsel fees of $14,800.

There is no dispute about the disbursements claimed by either party.

The City and Municipal Property Assessment Corporation were entirely successful and there is no dispute that costs should follow the result on a partial indemnity basis. The Respondents argue that a fair and reasonable global amount for fees and counsel fees would be $76,000. It argues that the fees claimed are excessive and beyond the fair and reasonable amount a litigant could expect to pay.

In addition, the Respondent argues that:

(a) Municipal Property Assessment Corporation and the City should have coordinated their submissions to avoid overlap as did the Respondents; and

(b) The issue was novel.

[1] I agree that the issues raised were complex. While notionally the appeal referred “only” to the interpretation of the phrase “fee simple, if unencumbered,” a contextual approach to interpretation required a review of the history of various assessment legislative measures as well as review of the “valuation” arguments advanced by the Respondents.

[2] While the precise amount of the municipal taxes affected by the interpretive issue cannot be calculated, I am satisfied that there were very substantial amounts of money at stake. There was no substantial unnecessary overlap in the arguments presented by Municipal Property Assessment Corporation and the City. Municipal Property Assessment Corporation claims for 639 hours other than counsel fees and Toronto claims 558 hours of which 115 was for junior counsel who was an articling student for most of the time he worked on the file.

[3] The City has discounted its time claimed on a partial indemnity rate from $94,350 to $60,000.

[4] Having regard to the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, I am of the view that the amount claimed by the City of $70,500 is a fair and reasonable amount for fees and counsel fees together with disbursements of $308. I allow the same amount of $70,500 for fees and counsel fees to Municipal Property Assessment Corporation plus $7,427.40 in disbursements, seeing no basis to distinguish between the successful Appellants in terms of the costs awarded.

[5] Judgment for costs to issue in accordance with these reasons.

Pardu J.

I agree, Carnwath J.

I agree, Jennings J.

DATE: December 1, 2009