CITATION: D.D.S. Investments Ltd. v. Toronto (City), 2010 ONSC 3415
DIVISIONAL COURT FILE NO.: 351/06
DATE: 20100621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, DAMBROT AND SACHS JJ.
B E T W E E N :
D.D.S. INVESTMENTS LTD.
Appellant
– and –
CITY OF TORONTO
Respondent
Robert G. Ackerman
for the Appellant
Brendan O’Callaghan
for the Respondent
COSTS ENDORSEMENT
McCOMBS J.:
[1] This appeal was heard March 3 and 4, 2010. Judgment was rendered dismissing the appeal on March 26, 2010[^1].
[2] As the successful party, the City of Toronto (the “City”) is entitled to its costs. The panel must also consider the issue of costs thrown away on two prior occasions. On June 13, 2007, Carnwath J. reserved to this panel the issue of costs thrown away on June 14, 2007 when this appeal was adjourned on short notice at the appellant’s request. As well, a motion to adduce fresh evidence scheduled to be heard February 21, 2008 was adjourned on short notice when the motion became a motion for counsel to be removed from the record. At that time, Cumming J. stated:
The issue of wasted costs to the City for the adjournment of the original June 14, 2007 date for the appeal and the motion date, today, re: the matter of fresh evidence, is left to be dealt with by the panel ultimately hearing the appeal, as the panel sees fit.
[3] The City seeks costs of $35,000 on a partial indemnity basis, broken down as follows:
• Preparation of Responding Materials - $10,000.00
• Costs thrown away for preparation in advance of the June 14, 2007 appeal - $9,000
• Costs thrown away for the February 21, 2008 motion – $3,000.00
• Preparation for and attendance at motions and appeal on March 3 and 4 - $13,000
[4] The unsuccessful Appellant, D.D.S., submits that while the City is entitled to its costs, an appropriate order would be between $18,000 and $22,000. D.D.S. submits, among other things, that the two adjournment requests were reasonable having regard to the circumstances at the time; that the City’s dockets are repetitious and lacking in specificity; and that D.D.S. acted reasonably and responsibly in pursuing the unsuccessful application for leave to introduce fresh evidence and in presenting the appeal.
[5] We do not agree with D.D.S. that the City should not receive any costs for the two adjournment requests. However, we do agree that the amount claimed by way of costs thrown away is excessive. Having regard to all of the circumstances, we conclude that the appropriate costs award is one of $30,000 all-inclusive, payable by D.D.S. to the City forthwith.
[6] The parties agree that this costs award should be applied as a set-off against the sum owed by the City to D.D.S. under the June 7, 2006 award granted by the Ontario Municipal Board and now upheld as a result of the unsuccessful appeal to this Court. We agree and so order.
McCOMBS J.
I agree.
DAMBROT J.
I agree.
SACHS J.
RELEASED:
CITATION: D.D.S. Investments Ltd. v. Toronto (City), 2010 ONSC 3415
DIVISIONAL COURT FILE NO.: 351/06
DATE: 20100614
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, DAMBROT AND SACHS JJ.
B E T W E E N :
D.D.S. INVESTMENTS LTD.
Appellant
– and –
CITY OF TORONTO
Respondent
COSTS ENDORSEMENT
McCOMBS J.
RELEASED: June 15, 2010
[^1]: [2010] O.J. No. 1452