Ostrander Point GP Inc. v. Prince Edward County Field Naturalists, 2014 ONSC 2127

Field Naturalists 2014 ONSC 2127

DIVISIONAL COURT FILE NOs.: 341/13, 342/13, 357/13

DATE: 20140404

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: OSTRANDER POINT GP INC. as general partner for and on behalf of OSTANDER POINT WIND ENERGY LP and DIRECTOR, MINISTRY OF THE ENVIRONMENT v. PRINCE EDWARD COUNTY FIELD NATURALISTS and ALLIANCE TO PROTECT PRINCE EDWARD COUNTY

BEFORE: NORDHEIMER, LINHARES de SOUSA & WHITAKER JJ..

COUNSEL: D. Hamilton & D. Cruz, for Ostrander Point GP Inc.

S. Davis, S. Kromkamp & F. Rotter, for Director, Ministry of the Environment

E. Gillespie & S. D. Hwang, for Prince Edward County Field Naturalists and Alliance to Protect Prince Edward County.

HEARD: Written submissions

ENDORSEMENT – COSTS

1On February 20, 2014, this court released its reasons allowing an appeal by Ostrander and the Director from the decision of the Environmental Review Tribunal and setting aside the Tribunal’s decision to revoke the Director’s decision to grant the Renewable Energy Approval. In the same reasons, appeals by Prince Edward County Field Naturalists and Alliance to Protect Prince Edward County from other aspects of the Tribunal’s decision were dismissed. We invited written submissions on costs. We have now received and reviewed those written submissions.

2Ostrander seeks costs in the amount of $120,000 inclusive of disbursements and HST from PECFN and $30,000 from APPEC. The Director only sought reimbursement from PECFN of the amount of $2,926.70 representing the amount paid for transcripts. The Director does not seek any other costs from PECFN and also does not seek costs from APPEC. PECFN and APPEC submit that there should be no order as to costs.

3In support of their submission that there should be no award of costs, PECFN and APPEC say that this proceeding involved matters of public interest and also raised novel issues. We accept that there was a measure of public interest engaged by the appeals and that they raised matters that have not previously been considered by this court. That, by itself, does dictate that costs are not to be awarded. Most cases that involve decisions by governments will involve some degree of public interest. The environmental issues involved in this case clearly do so. It is perhaps for that reason that the Director did not seek costs against either PECFN and APPEC. Similarly, there is no rule that the first case to raise a particular issue should not attract a costs award.

4At the same time, Ostrander was engaged in a process for which they had received government approval. PECFN and APPEC objected to that approval and opposed it at the Tribunal. PECFN was successful there in only one of its many objections to the approval. APPEC was entirely unsuccessful in its objection. Before this court, Ostrander was successful in reversing the decision in the one instance where PECFN had been successful before the Tribunal. At the same time, PECFN was unsuccessful in each of the aspects of its appeals from the Tribunal. APPEC was again unsuccessful in its appeal.

5PECFN and APPEC submit that there should be no order as to costs because this is “public interest” litigation. They refer to the decision in St. James’ Preservation Society v. Toronto (City), [2006] O.J. No. 2726 (S.C.J.) where T. Ducharme J. set out five factors in deciding whether a particular proceeding constitutes public interest litigation. He said, at para. 17:

My review of this jurisprudence suggests that the following factors should be considered in determining whether an unsuccessful litigant should be excused from paying costs because it was acting in the public interest:

(1) The nature of the unsuccessful litigant.

(2) The nature of the successful litigant.

(3) The nature of the lis -- was it in the public interest?

(4) Has the litigation had any adverse impact on the public interest?

(5) The financial consequences to the parties.

6While the outcome of these factors in this case is mixed, overall they do not support a conclusion that this was public interest litigation. First, PECFN and APPEC had a direct and personal interest in the outcome of this litigation. They represent one element of the interests of the residents of Prince Edward County. They clearly have a view about the wisdom of this wind turbine development. They are entitled to pursue that view but not with impunity. Second, Ostrander is a private actor, not a public one. It is more difficult to deny costs to a successful private actor than it is to a public one. The third factor is more favourable to PECFN and APPEC. As we have already said, there is a measure of public interest in this litigation. The fourth factor is more neutral While there is no serious adverse impact on the public interest from this litigation, there is nonetheless an adverse impact associated with the delay that is occasioned in having a project go forward that has been either directly or indirectly approved by two provincial ministries. Fifth, while undoubtedly Ostrander is better suited financially to absorb the costs of the litigation, that alone is not a reason to deny costs. One of the functions of costs is to ensure that all parties consider the wisdom of pursuing litigation and understand that there are consequences to doing so. PECFN and APPEC chose to pursue this matter before the Tribunal and then chose to pursue it further in this court. They must have been aware that there would be costs considerations engaged by pursuing their appeals in this court. There is no compelling reason to treat PECFN and APPEC any differently than any other party to litigation in that regard. In particular, PECFN and APPEC are not general public advocacy groups whose work elsewhere might be adversely affected by a costs award.

7In the end result, PECFN and APPEC should be required to pay costs to Ostrander. The issue then becomes what quantum of costs should be ordered. In approaching the task of fixing costs, we are cognizant of the general principles applicable to that task. In particular, we are aware that costs should be fixed in an amount that is fair and reasonable – see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.).

8Some of the factors set out above are relevant to the quantum of costs that should be paid. In particular, the amount of costs should reflect that there was a measure of public interest in this litigation. In our view, the amount of costs sought by Ostrander fails to sufficiently take that reality into account. The costs sought are also beyond that which a reasonable party would expect to pay for an appeal in this court, even recognizing that the appeals took three days in total. On that latter point, it should be noted that just over two days were consumed with Ostrander’s appeal. The third day was devoted to completing that appeal and dealing with PECFN’s appeals and APPEC’s appeal.

9In our view, a fair and reasonable amount for the costs relating to PECFN’s opposition to the Ostrander appeal and for its own appeals would be $40,000 inclusive of disbursements and HST. A fair and reasonable amount for the APPEC appeal would be $10,000 inclusive of disbursements and HST.

10Finally, PECFN was responsible, under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for providing a transcript of the evidence on its cross-appeal. PECFN provided only those portions of the transcripts that it was relying on. This forced the Director to obtain the balance of the transcripts. PECFN is liable for the cost of providing those additional transcripts. PECFN must reimburse the Director for the fees associated with the production of those additional transcripts.

11In summary, PECFN will pay to Ostrander costs of $40,000 inclusive of disbursements and HST and APPEC will pay to Ostrander costs of $10,000 inclusive of disbursements and HST. PECFN is also ordered to pay the Director the amount of $2,926.70 for disbursements. All of these amounts are payable within 30 days.