Court File and Parties
CITATION: Concerned Residents Association v. Preston Sand and Gravel et al., 2015 ONSC 4368
COURT FILE NO.: DC-14-615ML
DATE: 2015-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCERNED RESIDENTS ASSOCIATION OF NORTH DUMFRIES
E. Gillespie, for Concerned Residents Association of North Dumfries, the Applicant (Moving Party)
Applicant
(Moving Party)
- and -
PRESTON SAND AND GRAVEL COMPANY LIMITED and THE TOWNSHIP OF NORTH DUMFRIES
D. Germain, for Preston Sand and Gravel Company Limited, the Respondents (Responding Parties) and P. Kraemer for The Township of North Dumfries, the Respondents (Responding Parties)
Respondents
(Responding Parties)
COSTS RULING
PARAYESKI J.
[1] This is a costs ruling following my decision of March 31st, 2015. That decision was in respect of a long motion heard on December 15th, 2014.
[2] In that long motion, the applicant Concerned Residents Association of North Dumfries ("CRAND") sought an extension to file a motion for leave to appeal a decision of the Ontario Municipal Board to the Divisional Court. Both respondents asked that the applicant's motion be dismissed. In addition, the respondent Preston Sand and Gravel Company Limited ("Preston Sand") asked, in the event that the extension was granted, for an order that the applicant post security for costs. In my decision, I dismissed the applicant's motion and declined to rule on the security for cost issue on the basis that it was then moot.
[3] Both respondents ask for their costs flowing from my decision. In addition, the respondent Preston Sand asks that I order cost to be paid personally by eight individuals that it describes as being "the individual members and controlling minds of CRAND".
[4] The applicant submits that this is an appropriate case for me to exercise my discretion and order that the parties bear their own costs. The thrust of the applicant's argument in this regard is that it is a "public interest litigant". Of course"public interest litigants" fall somewhere on a spectrum ranging from "not in my backyard" types who oppose development because they fear it will impact negatively on their own property values to groups of citizens who are genuinely concerned with public good. In Citizens for Riverdale Hospital v. Bridgeport Health Services and the City of Toronto, an apparently unreported decision of the Divisional Court, the ruling of Justice Perell J. in Incredible Electronics Inc. v. Canada (Attorney General), reported at 2006 17939 (ON SC), 2006, 80 OR (3d) 723, was considered helpful. It sets out a number of factors to be considered when addressing this issue. Those factors include that: the litigant has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearly does not justify the proceeding economically; and that the issues have not been previously determined by a court in a proceeding against the same defendant.
[5] Because the applicant seeks to be exempted from exposure to costs, it bears the burden of providing proof with respect to the "personal, proprietary or pecuniary interest" factor described above. No substantive evidence is before me, and quoting from the high-minded "purposes" put forth at the time of CRAND's incorporation or telling me that CRAND attends town hall meetings and public workshop consultations is no sufficient substitute. I am not prepared to exercise my discretion to protect the applicant from having to pay costs.
[6] The applicant "lost" and the respondents both "won" on that part of the motion dealing with extension of filing time. The fact that one of Preston Sand's arguments was not accepted by me does not change the overall result, nor does it represent meaningful divided success. Because I did not rule on the cross-motion for security for costs, it follows that no party "won" or "lost" that part of the motion. This is not to say that bringing the cross-motion first instance was not appropriate. Because Preston Sand's offered to settle related solely to the cross-motion, it is essentially irrelevant to the issue before me.
[7] On the partial indemnity scale, the respondent Preston Sand asks for fees of $21,810.00 plus disbursements of $1,147.96. The Township of North Dumfries, on that same scale, ask for fees of $6,663.36 plus disbursements of $1,694.52, plus HST on both. The most significant difference in the fees sought flows in large part from the considerably different hourly rates charged by the respective lawyers and the fact that Preston Sand's counsel's time presumably includes attendances relative to the cross-motion. I say presumably because the costs outline does not provide that kind of detail.
[8] The submission by the applicant that both claims are "excessive and unreasonable" is not exactly helpful. There is no mention of any specific attendance being inappropriately long. Moreover, the applicant does not reveal its own costs to use on a comparative basis.
[9] Taking the submissions and the guidance provided by Rule 57.01 into consideration, I am prepared to fix the costs of Preston Sand at $15,000.00 all inclusive, and those of the Township at $9,000.00 all inclusive.
[10] I turn now to the issue raised by Preston Sand as to by whom its costs should be paid. The request is that the individual defendants, who were the original applicants before the Ontario Municipal Board, be personally liable. Those eight named individuals were replaced, on the consent of all parties appearing, by the present applicant, i.e. CRAND. Preston Sand argues that CRAND is a "man of straw" designed solely to shield the real litigants from exposure to costs. As set out in the Divisional Court case of Middlesex Condominium Corporation No. 232 v. Bodkin, reported at 2014 ONSC 106, [2014] OJ No 78, the power to award costs against entities other than named parties does not flow from Section 131 of the Courts of Justice Act. Rather, jurisdiction flows when there are exceptional circumstances limited to a situation in which the non-party is the real litigant, who puts up a "man of straw" to prosecute the litigation. In its decision in Television Real Estate Ltd. v. Rogers Cable T.V. Limited, reported at 1997 999 (ON CA), 34 OR (3d) 291, the Ontario Court of Appeal articulates a three-part test for the purpose of determining whether costs should be awarded against a non-party. According to that test, a party seeking such an order in the present context must show:
That the individuals had status to bring the underlying action themselves;
That CRAND is not a true applicant; and
That CRAND was a "man of straw" put forward to protect the individuals involved from liability for costs.
[11] The answer to the first question is plain. Those individuals were named initially as parties before the OMB. However, the answers to the second and third questions are less obvious. CRAND's replacing the individuals before the OMB was done on consent. While the assertion of CRAND that it is a separate corporate entity is hardly determinative in the circumstances, I am of the view that the onus rests on Preston Sand to provide evidence beyond bald, if logical, assertions in order to be entitled to the order it seeks. It has not met that onus in my view.
[12] In addition, the Ontario Court of Appeal in its St. James' Preservation Society v. Toronto (City) decision, reported at 2007 ONCA 601, 286 DLR (4th) 146, points out that procedural fairness requires that "non-parties must be given adequate notice of a litigant's intention to seek a costs award against them". I am unable to find notice of that intention, adequate or otherwise, in the motion materials or cost submissions before me.
[13] In sum, I am not prepared to order that the costs set out above are payable by anyone other than CRAND.
Parayeski J.
Released: July 9, 2015
CITATION: Concerned Residents Association v. Preston Sand and Gravel et al., 2015 ONSC 4368
COURT FILE NO.: DC-14-615ML
DATE: 2015-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CONCERNED RESIDENTS ASSOCIATION OF NORTH DUMFRIES
Applicant
(Moving Party)
- and –
PRESTON SAND AND GRAVEL COMPANY LIMITED and THE TOWNSHIP OF NORTH DUMFRIES
Respondents
(Responding Parties)
COSTS RULING
MDP:co
Released: July 9, 2015