Court File and Parties
CITATION: Gammie v. Town of South Bruce Peninsula, 2016 ONSC 2136
DIVISIONAL COURT FILE NO.: DC-14-118
OWEN SOUND SUPERIOR COURT FILE NO: 13-188
DATE: 20160411
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C. J.S.C., J. WILSON & C. HORKINS J.J.
BETWEEN:
CRAIG GAMMIE Applicant
– and –
TOWN OF SOUTH BRUCE PENINSULA Respondent
Counsel: Steven D. Gadbois, for the Applicant Timothy J. McGurrin, for the Respondent
HEARD in Brampton: March 14, 2016
Reasons for Judgment
Background
[1] This is an appeal of a costs order, with leave granted by Justice M. Donohue.
[2] Mr. Gammie has an extensive litigation history with the Town of South Bruce Peninsula (the “Town”), set out in paragraph six of the respondent’s factum as follows:
- on April 20, 2012, Mr. Gammie launched an Application under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 (the “MCIA”), against volunteer members of the Board of Management of the Wiarton Business Improvement Area (Court File No. 12-120);
- on May 11, 2012, Mr. Gammie launched an Application under the MCIA against Jim Turner, a Councillor for the Town (Court File No. 12-138);
- on May 23, 2012, Mr. Gammie launched an Application under the Municipal Act, 2001, S.O. 2001, c. 25, as amended (the “Municipal Act, 2001”), seeking to quash a Town by-law to set and levy the rates of taxation for the Town (Court File No. 12-145);
- on October 2, 2012, Mr. Gammie launched an Application under the MCIA against John Close, the Mayor for the Town (Court File No. 12-262);
- on November 2, 2012, Mr. Gammie launched an Application under the Municipal Act, 2001 seeking to quash a Town Council resolution that prohibited Mr. Gammie from attending and entering the Town’s Council Chambers, committee meetings and Town Hall facilities (Court File No. 12-315), which will be referenced below;
- on January 14, 2013, Mr. Gammie launched an Application under the MCIA against Mayor John Close, Councillor Jim Turner, Councillor Paul McKenzie, Councillor Jay Kirkland and Councillor Karen Klages, all of whom were members of the Town’s Council (Court File No. 13-007);
- on September 5, 2013, Mr. Gammie launched an application under the Municipal Act, 2001 seeking to quash a Town resolution to prohibit him from attending and entering the Town’s facilities (Court File No. 13-188); and,
- on September 5, 2013, Mr. Gammie launched an application under the Municipal Act, 2001 seeking to quash the Town’s Indemnification By-Law (Court File No. 13-189).
- Mr. Gammie also launched three (3) defamation claims in Small Claims Court against the following individuals:
- Mike McMillan, the former Chair of the Town’s Economic Development Committee;
- Marilyn Bowman, a Councillor for the Town; and
- Jay Kirkland, a Councillor for the Town.
[3] In addition, Mr. Gammie, on more than one occasion, left a tape recorder inside in camera Town Council meetings. On one occasion Mr. Gammie informed Town Council about the presence of the tape recorder and it was removed. However, on another occasion, Mr. Gammie did not inform Town Council about the tape recorder in circumstances where the purpose of the in camera meeting was to discuss the Town’s outstanding litigation with Mr. Gammie.
[4] Town Council on November 20, 2012 approved a Resolution (the “2012 Resolution”) prohibiting Mr. Gammie “from entering any Town of South Bruce Peninsula Council Chambers, committee meetings and Town Hall facilities until all litigation is completed.” (Emphasis added).
[5] Mr. Gammie applied to the Superior Court for an order quashing the 2012 Resolution on the ground that he had not been given notice of Council’s intention to consider it, or an opportunity to be heard before the 2012 Resolution was passed.
[6] On May 23, 2013, this application was dismissed on consent, with costs to the Town in the amount of $10,000 plus disbursements.
[7] The dismissal was on consent because the Town agreed to convene a Special Council Meeting at which Mr. Gammie would be permitted to make representations concerning the 2012 Resolution.
[8] The Special Council Meeting was held on July 24, 2013. On August 20, 2013, the Town Council varied the 2012 resolution and passed a new resolution that maintained the ban on Mr. Gammie’s attendance but provided him with the opportunity to participate at Council meetings through written submissions as well as permission to enter municipal buildings to register as a candidate in the 2014 municipal election (the “2013 Resolution”).
[9] Mr. Gammie registered as a candidate and was elected a Town Councillor on October 27, 2014. Mr. Gammie also took the opportunity to make written submissions to the Town Council about Council matters which interested him.
[10] Mr. Gammie also moved to quash both the 2012 Resolution and the 2013 Resolution.
[11] On June 3, 2014 after all of the litigation commenced by Mr. Gammie against the Town and related individuals had been resolved, the Town passed a further resolution in which it repealed the 2012 resolution and the 2013 resolution (the “2014 Resolution”).
[12] Despite the repeal of these two resolutions Mr. Gammie continued his application to quash and asked the court to determine the merits of his application in order to determine whether costs should be ordered.
[13] The application judge determined that Mr. Gammie’s attempt to quash the 2012 resolution would have failed and that his attempt to quash the 2013 resolution would have succeeded. The application judge ruled that, due to the fact that there would have been divided success, there should be no order concerning costs.
[14] Mr. Gammie obtained leave to appeal the costs order to a three-judge panel of this court.
Analysis
[15] A court should set aside a costs award on appeal only if the judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. This elevated level of deference recognizes that costs awards are quintessentially discretionary: Kerry (Canada) Inc. v. Ontario (Superintendent of Financial Services), 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126.
[16] For the reasons that follow, we can find no error in principle or a basis to conclude that the application judge was plainly wrong in awarding no costs based on his determination that success in the application would have been divided.
[17] It is not necessary for us to agree with the application judge; it is sufficient for us to conclude that the application judge’s speculation concerning the outcome of the application was reasonably open to him.
[18] There was a basis for the application judge’s determination that Mr. Gammie’s attempt to quash the 2012 resolution would have failed. Specifically, Mr. Gammie’s original application to quash that resolution was dismissed. The dismissal could only be set aside by the Court of Appeal. In addition, the resolution was only in effect until all litigation was completed and the application judge found as a fact in paragraph 19 of his decision that all of Mr. Gammie’s legal actions were resolved prior to August 20, 2013. Thus the 2012 Resolution was of no further force and effect in August 2013.
[19] Likewise, the application judge determined that Mr. Gammie’s application to quash the 2013 Resolution would have succeeded. In this regard, the application judge set out the reasons for his speculation and we cannot say that the matter could not have resolved itself in the way the application judge thought it would have.
[20] Accordingly, it was reasonably open to the application judge to find that Mr. Gammie’s application to quash the 2012 Resolution would have failed and that the application to quash the 2013 Resolution would have succeeded. As a result, the application judge’s determination that success in the application would have been divided was also reasonably open to him.
[21] Declining to order costs where there are two parties to litigation and their success is divided is well-established: see, for example, AB2000 Software Corp. v. Infinium Capital Corp., 2015 ONCA 829, at para. 49; U.F.C.W. v. Rol-Land Farms Ltd., 2008 CarswellOnt 3707 (Div. Ct.). It is not an error in principle or wrong to award no costs when success is divided: Silver v. Silver, 2015 ONSC 3816 (Div. Ct.); 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2011 ONSC 859 (Div. Ct.), at para. 30.
[22] Accordingly, this appeal is dismissed.
[23] The appellant agreed that the sum of $6500 plus disbursements plus applicable taxes was a reasonable fee to be paid to the Town in the event that it was successful. We agree that this is a reasonable sum to be paid on account of costs. As a result the appellant will pay the respondent $6500 plus disbursements plus applicable taxes on account of costs.
MARROCCO A.C.J.S.C.
WILSON J.
HORKINS J.
Released: [Click and Type Date]
CITATION: Gammie v. Town of South Bruce Peninsula, 2016 ONSC 2136
DIVISIONAL COURT FILE NO.: DC-14-118
OWEN SOUND SUPERIOR COURT FILE NO: 13-188
DATE: 20160411
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C. J.S.C., J. WILSON & C. HORKINS J.J.
BETWEEN:
CRAIG GAMMIE Applicant
– and –
TOWN OF SOUTH BRUCE PENINSULA Respondent
REASONS FOR JUDGMENT
Released: 20160411