PPF Investments Inc. v. The Town of Oakville et al.
CITATION: PPF Investments Inc. v. The Town of Oakville et al., 2010 ONSC 3652
COURT FILE NO.: DC-09-2943-ML
DATE: 2010-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
B E T W E E N:
PPF INVESTMENTS INC.
Applicant
- and -
THE TOWN OF OAKVILLE and THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION, REGION NO. 15
Respondents
COUNSEL:
Adam J. Ezer, for the Applicant
Nadia Chandra, for the Respondent, the Town of Oakville,
Shawn R. Douglas, for the Respondent, the Municipal Property Assessment Corporation, Region 15
HEARD: November 4, 2009, and June 3, 2010 at Brampton, Ontario
BEFORE: Price J.
Additional Reasons For Order and Reasons for Costs Order
Nature of Proceeding
[1] Following the release of my reasons on January 19, 2010 on this motion for leave to appeal, counsel made submissions on the issue of costs, which I had reserved.
[2] Before my Order of January 19, 2010 was signed and while my costs order was pending, Counsel asked to address me to correct two errors that I had apparently made as to the position taken by PPF at the hearing before me on November 9, 2009. I heard further submissions from all counsel in a telephone conference call on June 3, 2010.
Correction of Reasons dated January 19, 2010
[3] The errors in my understanding of PPF’s position arose from a discussion that took place at the hearing on the issue of potential prejudice to the Town of Oakville from its delay in having applied for leave to appeal. It was my understanding that PPF’s response was that it was not seeking a refund of the taxes levied against it for the years 2006 to 2008, the amount of which (approximately $42,000.00) PPF had paid into trust pending the outcome of its application, and that the remedy it was seeking was only to correct the assessed value of its property and the procedure by which it was arrived at, for the effect it was expected this would have in reducing the taxes levied against it in tax years from 2009 onward.
[4] Based on my understanding of PPF’s response to the arguments of the Town and MPAC regarding the potential prejudice to them arising from its delay, I concluded that PPF was relying on section 44(3), of the Assessment Act, dealing with tax years from 2009 onward, as well as on section 44(2).
[5] PPF took the position before me at the recent conference call that the discussion at the hearing had arisen in the context of the Town’s reliance on the 1935 decision of our Court of Appeal in Re Williams and Regimbal[^1], in support of its argument that the time provisions contained in the Act are intended to ensure that there is finality to the assessment roll, which forms the bais for municipal budgets. PPF has stated that its position in response was simply that it was not seeking a change to the Assessment Roll for 2006 to 2008 after a return had been made to the Municipal Clerk of the kind that the procedure in section 329 of the Act, dealing with omitted and additional assessments.
[6] In reply, the Town’s solicitor states that she does not recall any discussion of omitted or additional assessments at the hearing in November. She fairly acknowledges, however, that her notes from the hearing are not sufficient to permit her to comment further on whether PPF’s counsel is accurately characterizing the submissions he made at that time. Counsel representing MPAC in the conference call was not counsel at the original hearing and so was unable to assist as to what submissions PPF had made at that time.
[7] Counsel for both the Town and MPAC fairly acknowledge that had they been representing PPF, they would not have abandoned a claim for a refund of taxes for 2006 to 2008 in the event that it was found that the procedure used to arrive at the assessment of the property for those years was incorrect. It is also common ground that PPF had relied exclusively on section 44(2) of the Assessment Act in its application.
[8] Based on the foregoing, I am satisfied that I misunderstood the position taken by PPF at the hearing and was in error in attributing to it an abandonment of a claim to a refund of excess taxes for 2006 to 2008. I must therefore re-consider my decision in the light of what I now understand to be PPF’s position.
Corrections to my Reasons dated January 19, 2010
[9] It is not correct to state, as I did in paragraph 16 of my reasons of January 19, 2010, that PPF submits that an extension of time will not prejudice the Town in relation to its budget planning because PPF does not seek to disturb the taxes levied against it for the years 2006 to 2008, but only to ensure that it is taxed based on an equitable value in the future. In fact, PPF does seek a refund of the taxes levied against it for those years and, indeed, it is only the assessment of the property’s values for purposes of those taxes that is the subject of the present application.
[10] It also is not correct to state, as I did in paragraph 50 of my reasons, that PPF submits that it seeks only to adjust the assessment of its property’s value for purposes of future taxes. This adds some weight to the Town’s position that there is some prejudice caused by PPF’s delay in applying for leave to appeal, in that municipalities generally need finality of decisions as to property assessments so that they can have a reliable basis upon which to plan their budgets. That being said, the Town has not alleged that PPF’s delay has caused it to suffer any specific prejudice in this regard.
[11] It is also not correct to state, as I did in paragraph 53, that PPF seeks to affect the assessment of its property’s value only from 2009 forward, not for 2006 to 2008. I had indicated in my original reasons, on the understanding that this was PPF’s position, that in these circumstances, especially, I found that PPF’s delay in delivering its Notice of Application for leave to appeal, did not cause any actual prejudice to the Town or MPAC. Notwithstanding the correction of my understanding of PPF’s position, I still find that PPF’s delay did not cause any actual prejudice to the Town or MPAC. An inference of such prejudice simply from municipalities’ need to ensure that there is finality to the assessment roll, which forms the basis for municipal budgets, and its need, in general, for finality in property value assessments or even the taxes it has levied based on those assessments, is too speculative, in my view, to support a finding that PPF’s delay in applying for leave to appeal caused actual prejudice.
[12] The correction of my understanding of PPF’s position renders unnecessary my references to section 44(3) in paragraphs 57, 73 and 80 and 81 of my reasons. The conclusion I reached in my reasons does not depend on section 44(3) and is the same without reference to it. Section 44(3), in my view, is a statutory elaboration of the approach that the Court, in its interpretation of the less specifically worded section 44(2), has mandated.
[13] Based on the foregoing, and for the reasons previously issued, I confirm the result that I reached in my decision of January 19, 2010.
Costs
[14] I have reviewed the costs submissions of the parties. PPF seeks costs on a partial indemnity scale, fixed at $8,669.87, including taxes and disbursements. The Town and MPAC suggest an amount of $3,200.00.
[15] Section 131(1) of the Courts of Justice Act[^2] provides, in part, that “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the Court, and the Court may determine by whom and to what extent the costs shall be paid”. Rule 57.01(a)[^3] sets out the relevant considerations. It provides, in part:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the Court may consider…
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(c) the complexity of the proceeding;
(d) the importance of the issue;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(i) any other matter relevant to the question of costs. [Emphasis added]
[16] PPF claims an hourly rate of $200.00 on a partial indemnity scale for its counsel, Mr. Ezer. The Respondents, noting that Mr. Ezer was in his second year of practice when the motion was argued, submit that $125.00 would be a more appropriate hourly rate.
[17] The hourly rate which PPF claims is within those suggested in the “Information for the Profession” bulletin from the Costs Sub-Committee of the Rules Committee (“the Costs Bulletin”).[^4] The Costs Bulletin suggests maximum hourly rates of $80.00 for law clerks, $225.00 for lawyers of less than 10 years experience, $300.00 for lawyers between 10 and 20 years experience, and $350.00 for lawyers with 20 years experience or more.
[18] The maximum rates suggested in the Costs Bulletin should generally be reserved for the most complicated matters of great importance. The present motion involved complicated issues of statutory interpretation. The Town and MPAC, both represented by senior counsel, specialized in the field of municipal property assessment law, allow that it involved matters of average complexity.
[19] In dispute was a difference of over one million dollars in the assessed value of PPF’s property. While taxes are paid based on only a percentage of assessed value, I accept PPF’s position that it was a matter of great importance to it. The assessed value attributed to its property will have an impact on its property taxes and on the resale value of the property. The Town and MPAC fairly acknowledge that they regard the issues of the limitation period and equity under the Assessment Act as important ones. The importance they ascribe to it was reflected in the seniority of the counsel they assigned to argue the case and the care counsel took in their preparation and argument.
[20] Mr. Ezer, although he was in his second year of practice, presented appropriate and helpful written arguments and authorities and was able in his oral argument at the hearing. He is entitled to a rate of $225.00 per hour.
[21] The Town and MPAC submit that, given that PPF was late in commencing its motion for leave to appeal, it should be responsible for a portion of its own costs. I have dealt with the issue of delay in my earlier reasons. I concluded that Mr. Ferraro formed a bona fide intention to appeal within thirty days of when the Board’s decision was mailed to him. I also considered the fact that PPF was self-represented and encountered difficulty in securing the appropriate advice. In these circumstances, the costs of PPF should not be reduced based on the delay attributed to it.
[22] The Town and MPAC complain of a 12 page typed document entitled “Argument of the Applicant”, which included three cases not referenced in PPF’s Factum or included in its Brief of Authorities, and that PPF also submitted an additional case during the recess called to allow respondents’ counsel to respond. While the cases which PPF relied on should have been provided earlier, I accept PPF’s counsel’s explanation that he found the further cases when noting up the cases which the Town and MPAC had relied on in their factums. I do not regard the late delivery of these materials as having added to the time required for argument. In fact, I found them helpful and believe that the “Argument of the Applicant”, which summarized his oral argument, reduced the time that otherwise would have been required both for counsel’s submissions for my own note-taking.
[23] Several principles should guide a trial judge in an assessment of costs. First, in exercising the Court’s discretion under section 131(1) of The Courts of Justice Act[^5] and Rule 57.01 of the Rules of Civil Procedure[^6], the judge must arrive at a costs award that is a fair and reasonable amount to be paid by an unsuccessful party and take into account the expectations the parties would have had concerning the amount of a costs award: Zesta Engineering Ltd. v. Cloutier[^7]; Boucher v. Public Accountants Counsel for the Province of Ontario[^8]. Second, in reviewing a claim for costs, a trial judge need not undertake a line by line analysis of the hours claimed, nor should he/she second guess the amount claimed unless it is clearly excessive or overreaching. A trial judge must consider what is reasonable in the circumstances and, after taking into account all of the relevant factors, should award costs in a global fashion: see the cases referenced in Fazio v. Cusumano.[^9]
[24] The Town and MPAC have not provided a Costs Outline of their own as a basis for assessing the costs that they would have expected to pay, if unsuccessful.
[25] In all of the circumstances, it is my view that the costs of $8,669.87 which PPF claims is a fair and reasonable amount and is within the range of amounts which the Town and MPAC should reasonably have expected to pay in costs of the motion if they were unsuccessful. I am rounding the amount up to $8,700.00 to take account of the additional time required for the submissions made to me on June 3rd. These costs will be equally divided between the Town and MPAC.
Order
Based on the foregoing, I confirm my earlier order that PPF shall have leave to appeal to the Divisional Court from the Board’s decision.
The Town of Oakville and MPAC shall pay PPF’s costs of the motion fixed in the amount of $8,700.00 and payable within thirty days. These costs shall be divided evenly between the Respondents.
Price J.
Released: June 7, 2010
CITATION: PPF Investments Inc. v. The Town of Oakville et al., 2010 ONSC 3652
COURT FILE NO.: DC-09-2943-ML
DATE: 2010-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
B E T W E E N:
PPF INVESTMENTS INC.
Applicant
- and –
THE TOWN OF OAKVILLE and THE MUNICIPAL PROPERTY ASSESSMENT CORPORATION, REGION NO. 15
Respondents
ADDITIONAL REASONS FOR ORDER AND REASONS FOR COSTS ORDER
Price, J.
Released: June 7, 2010
[^1]: Re Williams and Regimbal, 1935 91 (ON CA), [1935] O.R. 199 (ON C.A.) at para. 13. [^2]: Courts of Justice Act, R.S.O. 1990, c. C. 43. [^3]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^4]: “Information for the Profession” bulletin (“the Costs Bulletin”) from the Costs Sub-Committee of the Rules Committee (that the Costs Sub-Committee of the Rules Committee issued to replace the Costs Grid, which it repealed in 2005. The Costs Bulletin has advisory status only and not statutory authority, as it was not included in the Regulation that repealed the Costs Grid. [^5]: The Courts of Justice Act, R.S.O. 1990, c. C. 33. [^6]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [^7]: Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), at para. 4. [^8]: Boucher v. Public Accountants Counsel for the Province of Ontario, above, at para. 38. [^9]: Fazio v. Cusumano 2005 33782 (ON SC), 2005 CarswellOnt 4518 (S.C.J.), at para. 8.```