Court File and Parties

Citation: McCutcheon v. Westhill Redevelopment Company Limited, 2010 ONSC 1665

Court File No.: 155/08

Date: 2010-03-22

Superior Court of Justice - Ontario (Divisional Court)

Re: McCutcheon v. Westhill Redevelopment Company Limited

Before: Ferrier, McCombs and Swinton JJ.

Counsel: Rodney V. Northey for Appellants McCutcheon, Sadler, Singh and Jones Roger T. Beaman for the Corporation of the Town of Aurora Michael J. McQuaid, Q.C. and John M. Buhlman for the Respondent Westhill

Heard at Toronto: By written submissions

Costs Endorsement

[1] The respondent, Westhill Redevelopment Company Limited, seeks costs of the appeal in the amount of $61,000.00 plus disbursements. While Westhill was successful on the appeal, we are of the view that it should be denied costs because of the unnecessary steps caused by it.

[2] This appeal arose from a decision of the Ontario Municipal Board in which it refused to exercise its discretion to order a joint board pursuant to s. 24(2) of the Consolidated Hearings Act (“CHA”). Leave to appeal was granted by Himel J.

[3] Westhill, in its factum filed for the appeal, first challenged the jurisdiction of the OMB to order a joint board, given regulations under the CHA and the Ontario Water Resources Act. A hearing before a different panel of the Divisional Court resulted in a referral of the jurisdiction issue to the OMB for determination.

[4] After a further hearing, the OMB determined that it did not have jurisdiction to order a joint board. Leave was granted to appeal this issue to the Divisional Court, and an appeal was heard over the course of two days. As a result of the second OMB decision, the parties were required to file new material.

[5] In accordance with rule 57.01(1), it would not be fair or reasonable to require the individual appellants and the Town to pay Westhill’s costs for unnecessary steps that lengthened the proceeding. Had Westhill raised the jurisdiction issue before the OMB at first instance, or at the first leave to appeal application, there would have been a significant saving of time and effort.

[6] In these circumstances, because Westhill has increased the costs to all parties by its failure to raise the issue of jurisdiction in a timely manner, we have concluded that each party should bear its own costs. Therefore, no costs are awarded.

Ferrier J.

McCombs J.

Swinton J.

Released: March 22, 2010