CITATION: Cusimano v. Toronto (City), 2011 ONSC 5578
COURT FILE NOs: 260/11 & 259/11
DATE: 20110926
SUPERIOR COURT OF JUSTICE - ONTARIO
Divisional Court
RE:
Court file no: 260/11
Agustine G. Cusimano Applicant (Respondent in Appeal)
- and -
City of Toronto Respondent (Appellant)
- And Between -
Court file no: 259/11
Michael Sullivan Applicant (Respondent in Appeal)
- and -
City of Toronto and Stephanie Payne Respondents (Appellants)
BEFORE: The Honourable Mr. Justice Sidney N. Lederman
COUNSEL: Julian D. Heller, for the Moving Party, Maria Augimeri
Lorne Honickman, for the /Applicant (Respondent in Appeal), Agustine G. Cusimano
HEARD: Written submissions
E N D O R S E M E N T
AS TO COSTS
[1] Maria Augimeri (“Augimeri”) seeks costs against Agustine Cusimano (“Cusimano”) of her motion to intervene as a party in the appeal brought by the City of Toronto. She seeks costs on a substantial indemnity scale in the amount of $34,000 or alternatively, on a partial indemnity scale in the amount of $25,000.
[2] The respondent, Cusimano, submits that no costs should be awarded to either party. In the alternative, he seeks an Order that the determination of costs with respect to the motion to intervene be determined by the panel hearing the appeal.
[3] Augimeri submits that it was unreasonable for Cusimano not to consent to Augimeri being added as a party in the appeal. The only offer to settle from Cusimano was made on July 21, 2011 after a delivery of the motion materials and immediately prior to the cross-examination which was to take place later that day. The terms of the offer to settle were that Cusimano would not oppose Augimeri intervening in the appeal as a party but required that Augimeri file no additional evidence but in totality would rely upon the City of Toronto’s compendium and exhibit book.
[4] On the motion to intervene it was decided that Augimeri would be added as a party and would be permitted to file additional evidence. However, success was divided on that issue in that intervention was restricted to introducing evidence referred to in certain portions of her supporting affidavit, but she was expressly prohibited from submitting any evidence of alleged misconduct by the respondent, Cusimano.
[5] In his written submissions as to costs, counsel for Cusimano argued that counsel for Augimeri violated the scope of the permitted intervention by filing in the appeal an extensive record of new evidence composed of several affidavits attaching more than 300 exhibits raised for the first time, a notice of constitutional question seeking, among other things, an order from the appeal panel to strike down several sections of the Municipal Elections Act. Moreover, it was submitted that Augimeri attempted to file evidence of alleged misconduct on behalf of Cusimano, specifically that he voted in the wrong ward and, therefore, should have been estopped from bringing the application in the first place.
[6] Because these matters are relevant to the issue of whether there has been compliance with the conditions of intervenor status and as the appeal has now been argued and the matter is under reserve by the appeal panel, this is an appropriate case in which to order that costs of the motion to intervene be determined by the panel who has heard the appeal.
LEDERMAN, J.
DATE: September 26, 2011