Whiteley v. Thomasfield Homes Ltd., 2013 ONSC 4983

CITATION: Whiteley v. Thomasfield Homes Ltd., 2013 ONSC 4983

DIVISIONAL COURT FILE NO.: 283/12

DATE: 20130726

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Hugh Whiteley, Moving Party / Appellant

AND:

Thomasfield Homes Ltd. and The Corporation of the City of Guelph and D Four Guelph Developments Ltd., Responding Parties / Respondents

BEFORE: T. Ducharme J.

COUNSEL: I. Flett, for the Appellant, Dr. Hugh Whiteley

M. Rodenburg, for the Respondent Thomasfield Homes Ltd.

S. Worsfold, S. Smith, for the Respondent The Corporation of the City of Guelph

P. Harrington, for the Respondent D Four Guelph Developments Ltd.

HEARD: October 11, 2012

RULING ON COSTS

[1] In my judgment of November 23, 2012, I indicated that if the parties could not agree with respect to the costs of this application, they could make brief submissions. I have now received written submissions from all the parties. The unsuccessful appellant, Dr. Whiteley seeks to be excused from paying costs on the basis that he was acting in the public interest. The three successful respondents dispute this and all seek costs in varying amounts.

[2] In assessing this issue, I have been guided by the principles I outlined in St. James' Preservation Society v. Toronto (City), [2005] O.T.C. 794. Although that decision was reversed on appeal, the Court of Appeal did not dispute the principles I had identified but rather took issue with how I had applied them in that particular case.

[3] The crucial issue in this case is whether or not this litigation had a public interest element that would justify a departure from the usual practice of awarding costs to the successful parties. The appellant argued that the OMB, in dismissing Dr. Whiteley’s appeal, necessarily implies that individuals other than land use planners, even technical experts such as ecologists, cannot provide land use planning evidence on an appeal to the Board. The appellant submits that this would have serious ramifications on appeals before the Board, particularly appeals in the public interest raising planning and environmental issues with developments. In my reasons, I rejected this submission and concluded that the OMB decision “does not stand for the proposition that the Board has created a new or heightened test for evidence of land use planning grounds.” Therefore, it cannot be said that the litigation involved an issue or issues the importance of which extends beyond the immediate interests of the parties involved. Nor can it be said that this was an issue that needed to be litigated or that had a public significance to the public at large.

[4] Thus, I reject the submission that Dr. Whiteley should be excused from paying costs as a public interest litigant.

[5] As Armstrong J.A. explained in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. As Justice Armstrong put it at 298, "it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable." He reiterated what the Court had said in Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495 at para. 4 (C.A.):

In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.

[6] I have considered both parties' written submissions and, in particular the following factors: (1) the respondent's success; (2) the application took approximately one day and both parties filed comprehensive written submissions; (3) the appellant does not take issue with the hourly rates; and (4) the matter was ultimately quite straightforward.

[7] Applying the approach taken in Boucher, supra and Zesta Engineering Ltd., supra, I conclude that the amounts requested by the respondents are excessive. As Thomasfield Homes Ltd. did the bulk of work on the appeal they shall be awarded $10,000 for fees and disbursements all in. The Corporation of the City of Guelph and D four Guelph Developments shall each be awarded $5,000 for fees and disbursements all in.

T. Ducharme J.

Date: July 26, 2013