Court File and Parties

CITATION: Timothy Patrick Danbrook v. The Corporation of the Town of Georgina, 2014 ONSC 5217 COURT FILE NO.: DC-13-590-00JR DATE: 20140912

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT AT OSHAWA

RE: Timothy Patrick Danbrook, Applicant AND: The Corporation of the Town of Georgina, Respondent

BEFORE: Czutrin S.J.F., Kiteley and Whitaker JJ.

COUNSEL: Colin A. Brown, for the Applicant Charles M. Loopstra, Q.C. and Daron L. Earthy, for the Respondent

HEARD: In writing

ENDORSEMENT AS TO COSTS AND related ISSUES

[1] In reasons for decision released July 8, 2014[^1] this court granted relief on the application for judicial review and directed counsel to make submissions in writing as to costs.

Positions taken by counsel on costs

[2] On behalf of the Applicant, Mr. Brown seeks the following:

(a) in this judicial review application (DC-13-590-00JR), “full costs” in the amount of $44,329.66 broken down as follows: fees $33,330.75; HST on fees $4,333; disbursements $5,927.45 (most of which is reporter’s fees and transcript fees); HST on disbursements $736.46;

(b) in DC-12-508-00ML, costs in the motion for leave to appeal from the decision of the Ontario Municipal Board heard by Mullins J. in the amount of $16,496.72;

(c) in DC-12-508-00ML, costs in the amount of $12,799.41 with respect to the motion to set aside the decision of Mullins J.;

(d) in DC-12-508-00ML, costs in the amount of $3,643.91 in relation to a motion to compel answers to questions;

(e) in DC-12-508-00ML, costs in the amount of $1,898.40 in relation to a motion dealing with whether the Applicant had standing;

(f) in DC-12-508-00ML, costs in the amount of $276.85 in relation to the respondent’s motion to quash summonses;

(g) in DC-12-508-00ML, costs in the amount of $2,760.60 in relation to the motion to extend time for leave to appeal;

(h) a further $20,000 as compensation for time personally expended by Mr. Danbrook for periods when he was self-represented based on over 100 hours at $200.00 per hour which is his hourly rate for his business. No breakdown of those hours has been provided. As indicated in paragraph 31 of the earlier reasons, this Application for Judicial Review (DC-13-590-00JR) was issued on August 30, 2013. Mr. Danbrook has been represented by counsel since the issuance of this Application and accordingly we infer that all of those hours related to other proceedings.

[3] On behalf of the Respondent, Mr. Loopstra takes the following position:

(a) with respect to this Judicial Review Application, there is no basis for an award of costs on a full indemnity basis. Based on an hourly rate fixed at 60% of the Applicant’s actual costs, he concedes costs in respect of fees in the amount of $19,998.45 and, to reflect partial success, fees awarded should be 50% or $9,999.23 plus HST on fees in the amount of $1,299.90 plus all of the disbursements including HST in the amount of $6,665.91 for a total of $17,965.04;

(b) this court has no jurisdiction to overturn the costs order of Mullins J. referred to in 2 (b) above;

(c) this court has no jurisdiction to make an order with respect to 2(c) to (g) above;

(d) there is no basis to award costs for the Applicant’s time.

Preliminary Issues

[4] In the earlier reasons for decision, the following appeared at paragraph 1:

Two applications were before the Court on March 7, 2014. In action DC–12–508– 00ML the Applicant brought a motion pursuant to s. 21(5) of the Courts of Justice Act to set aside the order made by Mullins J. dated October 25, 2013 in which she refused to grant leave to appeal a decision of the Ontario Municipal Board dated August 3, 2012. The Respondent brought a motion to dismiss that motion to set aside on account of the failure of the Applicant to pay costs ordered by Mullins J. That motion prompted a motion on behalf of the Applicant for an order seeking a stay of the order as to costs. Counsel for the Applicant agreed not to proceed with that motion and in an endorsement dated March 7, 2014, the Court indicated that the motion to set aside the order will not be heard before costs are paid and, at that time, it will be heard by this panel. If the Applicant is successful on the Judicial Review Application, he will not pursue the motion to set aside the order.

[5] In his letter enclosing the written submissions on costs, Mr. Brown asked for the following:

clarification on the issue of [Mr. Danbrook’s] right to proceed with the motion to set aside the decision of Justice Mullins. He advises it was his intention not to proceed on that motion should the judicial review decision render it moot. Within the framework of this decision and the authority granted in the endorsement to the record of the motion to set aside, Mr. Danbrook wishes to proceed with the motion to set aside that decision. While all parties agreed that there may be no need to proceed with this motion should the Judicial Review Application render the decision moot, Mr. Danbrook feels that the motion is not moot.

The point of clarification requested is, was it the intention of the panel to take that right away?

[6] As paragraph 1 of the earlier reasons indicated, Mr. Danbrook’s counsel represented to this court that if Mr. Danbrook was successful on the Judicial Review Application, he would not pursue the motion to set aside. Based on the request made by Mr. Brown, it would appear that Mr. Danbrook now seeks to attach a condition to not pursuing the motion to set aside, namely whether he thinks that the decision made on the judicial review application rendered the decision of Mullins J. moot. No such condition was attached at the hearing on March 7. This panel of the Divisional Court has not “taken away his right to proceed with the motion to set aside the order made by Mullins J. dated October 25, 2013”. Mr. Danbrook abandoned it if he was successful on the Application for Judicial Review.

[7] In her order dated October 28, 2013, Mullins J. directed Mr. Danbrook to pay costs in the amount of $19,357.64 and directed the Town to pay costs in the amount of $3,750. In his written submissions on costs, it appears that Mr. Brown asks that this Court set aside the order directing Mr. Danbrook to pay costs in the amount of $19,357.64. We agree with counsel for the Town that this Court does not have jurisdiction to (a) set aside the costs order arising from that hearing; and (b) impose an order in favour of Mr. Danbrook. The request set out in paragraph 2(b) above is dismissed.

[8] For the reasons indicated above, this court did not hear the motion to set aside the order of Mullins J. and accordingly this court does not have jurisdiction to deal with the request for costs in paragraph 2(c). Furthermore, the requests in paragraph 2(d) to (g) are all interlocutory matters that arise from DC-12-508-00ML over which we have no jurisdiction.

[9] Courts may make orders to compensate self-represented parties. However, as indicated above, it appears that the claim asserted relates to proceedings other than this Application for Judicial Review. Accordingly, this court cannot make an order for such costs.

Analysis of the Claim for Costs in the Judicial Review Application

[10] Pursuant to s. 131(1) of the Courts of Justice Act, this court has discretion with respect to the costs of and incidental to this Application for Judicial Review. Pursuant to rule 57.01 of the Rules of Civil Procedure, in making a determination as to entitlement to costs and the amount of costs, the Court must consider several factors.

[11] The Applicant did not achieve all the relief sought in the Notice of Application but he was successful. He is entitled to costs.

[12] This Court found that as a result of the actions of the Respondent, the Applicant had been denied procedural fairness with respect to the meeting held on July 18, 2011, which is a matter of considerable importance. In the circumstances of this case, the Respondent ought not to be relieved of the obligation to pay costs of the entire proceeding and ought not to be entitled to any discount because the Applicant did not achieve complete success. Although he did not obtain an order for all the relief he sought, we are not persuaded that the costs should be reduced on that basis.

[13] One of the issues in the application was whether the Clerk or Deputy Clerk had given an opinion pursuant to s. 9(1)2 of the DCA Regulation. As indicated in paragraph 54 of the earlier reasons, this Court found that neither the Clerk (Mr. Chenier) nor the Deputy Clerk (Ms. Lyons) had given such an opinion. While that did not prove fatal to the Respondent, at paragraph 60 of the earlier reasons, this Court held as follows:

I accept the importance of compliance with s. 9(1)2 of the DCA Regulation. I do not excuse the failure of Counsel to proceed with notification without obtaining an opinion of the Clerk or the Deputy Clerk. It is unsatisfactory that the Applicant was put in the position of having to be so persistent in order to obtain information about the involvement of the Clerk in complying with the notice requirements, which should have been readily available to him. This failure on the part of the Town will be a factor in the order made as to costs. However, notwithstanding that failure to comply, I am satisfied that the Applicant was not denied procedural fairness with respect to the meeting held on June 20, 2011. [emphasis added]

[14] Rule 57.01(1)(e) requires this Court to take into account the conduct of any party that tended to lengthen unnecessarily the duration of the proceeding. As was indicated in the earlier reasons, the issue of whether the Town had complied with s. 9(1)2 occupied an inordinate amount of time and preoccupied counsel to a considerable extent in advance of the hearing. None of that would have been necessary if the Town had properly responded to a request from a taxpayer about compliance with a Regulation. The Applicant is entitled to be fully reimbursed for that unnecessary effort even if the failure to comply was not determinative of the application.

[15] Counsel for the Applicant referred to efforts to resolve matters. He provided a copy of an email from Mr. Danbrook dated March 1, 2013 in which he asked Mr. Loopstra to advise how much in costs he would be seeking if he failed to resolve the issues. He indicated that he did not want to abandon his efforts but would walk away if he could do so without having to worry about costs. Mr. Brown also provided a copy of an email dated November 13, 2013 to Mr. Loopstra in which he advised that he had instructions to offer to end all legal proceedings on a without costs basis.

[16] It is the case that those efforts to settle encompassed actions other than this judicial review application. However, they demonstrate that Mr. Danbrook was at least making an effort. There is no indication in the submissions on costs that the Town ever reciprocated. From that we infer that Mr. Danbrook was not given an opportunity to negotiate a resolution of this Application and had to proceed.

[17] Counsel for the Town relies on “reasonable expectations” of the parties which is a relevant factor. He referred to the costs awarded by Mullins J. following the hearing for 1.5 days in the amount of $19,357.64. However, we observe that Mr. Loopstra’s costs outline for that hearing totaled $65,535.31. That suggests that Mr. Brown’s costs outline for this one day hearing in the amount of $44,329.66 is within the reasonable expectations of the Town.

[18] Pursuant to rule 57.01(4), this Court has the authority to award full indemnity costs. We agree that such costs are rarely ordered. However, in the circumstances of this case where the Court found a denial of procedural fairness with respect to the meeting held on July 18, 2011 and the conduct referred to in paragraphs 13-14, we conclude that it is fair and reasonable to award substantial indemnity costs.

[19] Counsel for the Town does not dispute the details of the costs outline or the hours involved in pursuing the Application, nor does he challenge the disbursements.

ORDER TO GO AS FOLLOWS:

[20] The Respondent shall pay to the Applicant costs in the amount of $44,329.66, payable within 30 days.

Czutrin S.J.F.

Kiteley J.

Whitaker J.

Date: September 12, 2014

[^1]: 2014 ONSC 3746