Gordon v. North Grenville (Municipality), 2011 ONSC 3070
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Frank Gordon
AND
Municipality of North Grenville and R.E Wilkinson, Chief Building Inspector
BEFORE: Justice L. Ratushny
COUNSEL: Paull N. Leamen, for Frank Gordon
William R. Hunter, for The Municipality of North Grenville and R.E Wilkinson, Chief Building Inspector
DATE HEARD: March 8, 2011
ENDORSEMENT ON COSTS
1By the appeal decision released April 8, 2011 it was determined the respondents had no authority under the Building Code Act to issue the Orders in December 2010 that caused the Care Facility to be immediately evacuated and closed for use.
2Costs were awarded to the appellant as the successful party. Submissions on their amount have been received.
3The appellant requests costs on a substantial indemnity basis in the amount of $40,204.57 all inclusive, because of the respondents’ conduct that he characterizes as reprehensible and callous in making the Orders: Mortimer et al. v. Cameron et al. (1944), 1994 10998 (ON CA), 19 M.P.L.R. (2d) 286 (OCA), at para. 67. The appellant also submits the respondents proceeded in a manner they knew or ought to have known was wrong and where other legal options were available: Jengle et al. v. Keetch et al. (1989), 1989 4221 (ON SC), 68 O.R. 238, at para. 49.
4The respondents originally submitted a Bill of Costs for partial indemnity costs of $23,575.25 and subsequent to the appeal decision awarding costs against them, they recommend a range of $5000.00 to $7500.00 all inclusive. They submit the issue decided by the appeal decision was simply that the respondents should have proceeded under s. 15.10 of the Building Code Act rather than under s. 15.9 as was the case. Further, they say, there was no finding of bad faith and instead, there was evidence of their concern for the safety of the Care Facility’s residents as motivating the Orders.
5I do not agree with the respondents’ submission that the issue in the appeal was whether the respondents should have acted under s. 15.10 instead of under s. 15.9. As stated in the appeal decision, the issue was the giving of reasonable notice as well as an opportunity to remediate, regardless of the section (para. 41).
6I accept there is no evidence before me that I would characterize as amounting to bad faith conduct by the respondents. Neither would I characterize their conduct as reprehensible or callous as it did have a public safety component. Where the respondents did err, however, in acting upon their concern for safety in making the Orders, was to ignore the appellant’s rights under the Building Code Act and fail to give the appellant reasonable notice and reasonable opportunity to remediate.
7I also accept that there was evidence before me indicating there were other legal options available to the respondents to deal with their safety concerns.
8It is on the basis of the ignoring of the appellant’s rights by the respondents in their capacity as governmental authorities and in the face of reasonably available alternative means of ensuring safety that constitutes a justification, in my view, for an award of costs in an elevated amount. I accept that the appeal was a matter of average complexity and important to the appellant in particular. I have noted that the unsuccessful party submitted a Bill of Costs for $23,575.25.
9With these factors in mind, I exercise my discretion to award costs to the appellant in the amount of $20,000.00, all inclusive and payable forthwith.
The Hon. Justice L. Ratushny
RELEASED: May 19, 2011
CITATION: Gordon v. North Grenville (Municipality), 2011 ONSC 3070
COURT FILE NO.: 11-DV-1704
DATE: 20110519
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Frank Gordon
AND
Municipality of North Grenville and R.E Wilkinson, Chief Building Inspector
BEFORE: Justice L. Ratushny
COUNSEL: Paull N. Leamen, for Frank Gordon
William R. Hunter for The Municipality of North Grenville and R.E Wilkinson, Chief Building Inspector
ENDORSEMENT ON COSTS
Ratushny J.
RELEASED: May 19, 2011