Court File and Parties
HAMILTON COURT FILE NO.: DC 09-105JR DATE: 2009/12/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM M. WINDSOR Applicant
- and -
MAID OF THE MIST STEAMBOAT COMPANY, LIMITED and THE NIAGARA PARKS COMMISSION Respondents
Counsel: Graydon Sheppard, for the Applicant Peter A. Mahoney, for the Respondent, The Niagara Parks Commission
HEARD: October 2, 2009
THE HONOURABLE MADAM JUSTICE L.M. WALTERS
Reasons for Judgment
1On February 26, 2009, the applicant commenced an application for judicial review of the decision of the respondent, The Niagara Parks Commission, made April 18, 2008 with respect to a lease renewal for the co-respondent, Maid of the Mist Steamboat Company, Limited.
2By Notice of Motion dated July 21, 2009, the respondent, The Niagara Parks Commission, brought a motion to quash the application for judicial review arguing that the motion was premature and, in any event, the court lacked jurisdiction to review the decision.
3The motion was argued before me on October 2, 2009. Although the respondent, Maid of the Mist Steamboat Company, Limited, was represented by counsel at the motion, no materials were filed on its behalf.
4I reserved my decision. Shortly thereafter, on October 27, 2009, the Ontario Government determined that the lease process should be opened to competitive bidding.
5On November 2, 2009, a conference call was held with counsel for the applicant and the respondent, The Niagara Parks Commission, to determine if the court should still render a decision on the motion in light of the Government’s position. No final response was received from counsel.
6On November 27, 2009, the applicant filed a Notice of Abandonment with respect to their application for judicial review.
7On December 22, 2009, another conference call was held with both counsel.
8The applicant’s position is that the relief sought in the application has in effect been obtained through the actions of the Government of Ontario. There is no purpose in proceeding with the application. No costs should be awarded.
9The respondent, The Niagara Parks Commission, argues that it is entitled to have the motion determined despite the filing of a Notice of Abandonment. Further, the respondent is entitled to costs as it has achieved its goal of having the application for judicial review stopped.
10In my view, the filing of the Notice of Abandonment renders all issues before the court moot, with the sole exception of costs.
11Counsel for the applicant referred the court to the decision of the Supreme Court of Canada in Borowski v. Canada, [1989] 1 S.C.R. 342 at paras. 16 and 31 to 33, in which the court held that in order for a moot issue to be heard, the court must be satisfied that both parties have an interest in a determination of the issues. Clearly, the applicant has no such interest.
12Pursuant to Rule 38.08(3) where an application is abandoned, a respondent “is entitled to the costs of the application, unless the court orders otherwise.”
13In my view, this is an appropriate case to exercise my discretion and order otherwise.
14In this case, the applicant did not change its mind and decide not to proceed. Instead, the Government of Ontario, of which the respondent is a crown agent, made a decision outside the control of the applicant, which rendered the application unnecessary.
15In these circumstances, no costs shall be awarded against any party.
Walters J.
Released: December 23, 2009
COURT FILE NO.: DC 09-105JR DATE: 2009/12/23
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
WILLIAM M. WINDSOR Applicant
- and –
MAID OF THE MIST STEAMBOAT COMPANY, LIMITED and THE NIAGARA PARKS COMMISSION Respondents
REASONS FOR JUDGMENT
Walters J.
Released: December 23, 2009