Court File and Parties

Citation: Cardinal v. Windmill Green Fund LPV, 2017 ONSC 29 Divisional Court File No.: DC-16-2215 Date: 2017-01-11 Superior Court of Justice – Ontario Divisional Court

Re: Douglas Cardinal et al., Appellants And: Windmill Green Fund LPV and City of Ottawa, Respondents

Before: Swinton, Whitten and McCarthy JJ.

Counsel: Michael Swinwood, for the Appellants Ronald F. Caza and Alexandra Savoie, for the Respondent City of Ottawa

Heard: In writing

Costs Endorsement

[1] The City of Ottawa seeks costs of the motion to set aside the order of Hackland J. refusing leave to appeal a decision of the Ontario Municipal Board. The amount sought is $12,845.59 plus disbursements of $920.27. Windmill does not seek costs.

[2] The appellants submit that there should be order of costs, as they are public interest litigants.

[3] Hackland J. awarded no costs for the motion for leave to appeal, accepting that the appellants should be considered public interest litigants for purposes of that motion.

[4] We have taken into account the factors to be considered when deciding whether an unsuccessful litigant should be excused from paying costs because of the public interest nature of the litigation (see St. James Preservation Society v. Toronto (City), 2007 ONCA 601 at para. 23). We reach a different conclusion from Hackland J. with respect to the costs for the motion to set aside because the issue in the motion was not in the public interest.

[5] The test on a motion to vary or set aside a denial of leave to appeal is well-established: did the motions judge decline jurisdiction when he refused leave to appeal? The appellants’ motion to set aside was totally without merit. In effect, they sought to appeal the decision of the motions judge and to reargue the merits of the leave motion. In these circumstances, the motion to set aside cannot be characterized as litigation in the public interest.

[6] Accordingly, costs to the City are fixed at $5,000.00 all in, on a partial indemnity basis, an amount that is fair and reasonable for a motion of this type, payable by the appellants on a joint and several basis.

Swinton J.

Whitten J.

McCarthy J.

Date: January 11, 2017