Court File and Parties
CITATION: Sydenham District Association v. Limestone District School Board, 2015 ONSC 594
DIVISIONAL COURT FILE NO.: 391/14
DATE: 20150202
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Sydenham District Association, ARTHUR COCKFIELD, LINDSAY DAVIDSON, CHRISTINE SYPNOWICH, DAVID GORDON and CARL BRAY Applicants
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limestone district school board Respondent
BEFORE: Spence, Lederman and Swinton JJ.
COUNSEL: Paul Champ and Bijon Roy, for the Applicants
Michael A. Hines, for the Respondent
HEARD at Toronto: in writing
COSTS ENDORSEMENT
[1] The respondent Limestone District School Board seeks costs of the application for judicial review on a partial indemnity basis in the amount of $60,000. The applicants argue that no costs should be awarded, as they are public interest litigants. In the alternative, they argue that costs should be fixed at $15,000.
[2] The repurposing and closing of schools, by their very nature, are matters greatly affecting the community, and litigation in respect thereto is in the public interest. However, even if the applicants purported to act in the public interest, that does not render them immune from a costs award.
[3] The applicants have, to some degree, acted in their own self-interest in advancing this litigation in an attempt to keep KCVI open. Despite extensive opportunities for participation in the consultation process leading up to the decision with respect to the future of the central Kingston schools under review, they brought this application for judicial review to challenge the respondent’s decision.
[4] As well, they have adopted a “no holds barred” approach, raising a large number of attacks on the consultation process, many of which were without merit and caused the respondent to incur significant costs in responding. Accordingly, the applicants should bear some costs.
[5] Although the costs incurred by the respondent greatly exceed the $60,000 sought in costs, that amount is excessive in the circumstances. A measure of the applicants’ expectations as to costs is the $25,000 to $30,000 range, given the amount that they will be paying to their counsel and given the $25,000 awarded in the decision of the Divisional Court in DeLarue v. Kawartha Pine Ridge District School Board, 2012 ONSC 7372.
[6] Moreover, a costs award must reflect the principle of proportionality. In DeLarue, the Court awarded 20% of the total partial indemnity costs sought. In the present case, 20% of the total partial indemnity costs of $157, 150 would be $31,340. As the record in the present case was more complex than that in DeLarue, it is reasonable to award a larger sum in costs.
[7] Given all these considerations, costs to the respondent are fixed at $35,000 inclusive of HST and disbursements, payable jointly and severally by the applicants.
Spence J.
Lederman J.
Swinton J.
Date: February 2, 2015