CITATION: Holyday v. City of Toronto, 2010 ONSC 6998
COURT FILE NO.: 37/10
DATE: 20101222
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Douglas Holyday v. City of Toronto et al.
BEFORE: Justices McCombs, Swinton and Wilton-Siegel
COUNSEL: George H. Rust-D’Eye and Raivo Uukkivi for Douglas Holyday
Alan J. Lenczner and Emily Graham for the City of Toronto
Michael I. Binetti for Giorgio Mammoliti
Murray Maltz for the Intervenor Toronto Party for a Better City
HEARD AT TORONTO: By written submissions
COSTS E N D O R S E M E N T
[1] The applicant, Douglas Holyday, seeks costs of $43,000.00, on a substantial indemnity basis, as against the respondents, the City of Toronto and Adrian Heaps, and $9,000.00 against Giorgio Mammoliti. The City argues that costs should be awarded to Sandra Bussins or, in the alternative, each party should bear its own costs.
[2] The applicant argues that this application for judicial review was brought in the public interest. While he was not totally successful, he submits that he should be indemnified for his costs nonetheless, because the City acted without authority when it reimbursed Mr. Heaps and Mr. Mammoliti for certain legal expenses.
[3] In our view, the applicant should be awarded costs, but not on a substantial indemnity basis. Moreover, the amount of costs should reflect that his success in the application was partial. As well, the amount sought for legal fees is excessive, given that this was not a complex matter.
[4] Costs to the applicant are fixed at $15,000.00 inclusive of HST and disbursements, payable by the City of Toronto.
[5] We would not award costs against Mr. Mammoliti or Mr. Heaps, as it was the actions of the City that led to this application for judicial review.
[6] Indeed, we would award modest costs to Mr. Mammoliti, as he appeared to oppose the relief sought against him personally, and he was successful on this issue. Therefore, we order costs to Mr. Mammoliti of $5,000.00, payable by the applicant.
[7] We would not award costs to Ms. Bussins, despite her success, as she was represented by counsel for the City, nor would we award costs to the Intervenor.
McCombs J.
Swinton J.
Wilton-Siegel J.