Snowden v. The Corporation of the Township of Ashfield-Colborne-Wawanosh, 2018 ONSC 10
COURT FILE NO.: DC 18/16
DATE: 2018/01/03
SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT - ONTARIO
RE: RONALD SNOWDEN Applicant (Responding party)
AND:
THE CORPORATION OF THE TOWNSHIP OF ASHFIELD-COLBORNE-WAWANOSH Respondent (Moving party)
BEFORE: Justice I.F. Leach
COUNSEL: G. Edward Oldfield, for the applicant (responding party)
Patrick J. Kraemer, for the respondent (moving party)
HEARD: In writing
ENDORSEMENT
Introduction
[1] On November 14, 2017, I released my substantive decision – since reported as Snowden v. Ashfield-Colborne-Wawanosh (Township), [2017] O.J. No. 5868 (Div.Ct) – dealing with a motion brought by the respondent township (“the Township”), seeking leave to appeal from a decision of the Ontario Municipal Board, (the “OMB”).
[2] That OMB decision related to an underlying application for an Official Plan and/or Zoning By-law amendment, brought by Ronald Snowden. In particular, Mr Snowden’s original application sought permission for an accessory building on property Mr Snowden owns in St Helens; a hamlet located within the Township, in turn located within the County of Huron.
[3] After that application effectively was denied by the Township, Mr Snowden filed an appeal with the OMB.
[4] Following an unsuccessful preliminary motion by the Township, requesting that the appeal be dismissed pursuant to s.34(25)(a)(i) of the Planning Act, R.S.O. 1990, c.P.13, (which permits the OMB to dismiss all or part of an appeal without holding a hearing, on its own initiative or on the motion of any party, if the OMB is of the opinion that the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal), the OMB concluded that the accessory building erected by Mr Snowden fit the character of the surrounding area, was consistent with provincial policy, and conformed with the policy direction of both the county and township official plans. The OMB accordingly allowed Mr Snowden’s appeal. It then ordered the Township to prepare and submit, for the OMB’s consideration, a draft zoning by-law indicating that a portion of Mr Snowden’s lands would be formally rezoned so as to permit the relevant accessory building, as well as its use for storage and other farm-related uses.
[5] For reasons set out in my earlier substantive decision, I dismissed the Township’s motion for leave to appeal the OMB’s decision to the Divisional Court. I did so because I was not satisfied that the issues identified in the contemplated appeal raised questions of law, in respect of which there was reason to doubt correctness of the OMB’s decision, and/or which were of sufficient general or public importance to merit the attention of the Divisional Court.
[6] Because my decision had been reserved, the parties had no opportunity to address costs when the Township’s motion for leave to appeal was argued before me. In my endorsement, I therefore invited written cost submissions, pursuant to an indicated timetable, if the parties were unable to reach an agreement concerning costs.
[7] Written cost submissions, (with attachments including an outline of the legal fees, disbursements and applicable HST sought by Mr Snowden, on either a partial indemnity or substantial indemnity basis, were delivered on behalf of Mr Snowden on or about November 24, 2017.
[8] Responding written cost submissions, (with no attachments), were delivered on behalf of the Township on or about December 1, 2017.
[9] Mr Snowden apparently decided not to file any further written cost submissions in reply.
Party Positions
[10] The material filed by Mr Snowden effectively seeks a formal cost award of either:
• $13,194.64 for fees, disbursement and applicable HST, if the court awards costs on a partial indemnity basis; or
• $17,118.56 for fees, disbursements and applicable HST, if the court awards costs on a substantial indemnity basis.
[11] The latter request generally is based on submissions that the Township has put a private citizen to the expense of challenging the decisions of a government body, and that the Township should have accepted the OMB’s decision without putting Mr Snowden to the unnecessary further expense of a motion to appeal the OMB’s decision to the Divisional Court.
[12] In its responding submissions, the Township primary request is that no costs be awarded, on the basis that both parties essentially required the assistance of the court to resolve issues of considerable importance from both perspectives.
[13] In the alternative, the Township submits that Mr Snowden should receive his costs only on a partial indemnity basis, that the costs claimed should be reduced for a number of reasons, (e.g., because certain time spent on the matter seems excessive), and that it would be reasonable and appropriate in the circumstances to limit Mr Snowden’s entitlement to the all-inclusive sum of $5,000.00.
General principles
[14] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as amended, and subject to the provisions of an Act or rules of court, “the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid”.
[15] This is supplemented by the provisions of Rule 57.01, subsection (1) of which lists a broad range of factors the court may consider when exercising its discretion to award costs pursuant to section 131.
[16] Our courts repeatedly have emphasized that cost awards must not be a simple mechanical or mathematical calculation; e.g., focused merely on details of time spent multiplied by hourly rates, or a tabulation of disbursements actually incurred.
[17] Rather, all cost claims are subject to the “overriding principle of reasonableness”, as applied to the factual matrix of the case, pursuant to the ultimate “cross check” required by such authorities as Boucher, Moon and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 2005 1042 (ON CA), 75 O.R. (3d) 638 (C.A.), and Anderson v. St Jude Medical Inc. (2006), 2006 85158 (ON SCDC), 264 D.L.R. (4th) 557 (Ont.Div.Ct).
[18] The overall goal is to award costs in an amount that is “fair and reasonable for the unsuccessful party to pay in a particular proceeding”, rather than a sum tailored to an exact measure of the actual costs of a successful litigant. See Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), at paragraph 26, and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. no. 4495 (C.A.), at paragraph 4.
[19] I was not referred to any legislative provisions or authority mandating or suggesting an approach to cost determinations, in relation to motions for leave to appeal OMB decisions to the Divisional Court pursuant to s.96(1) of the Ontario Municipal Board Act, R.S.O. 1990, c.O.28, that differs in any material way from the approach to be taken in relation to the costs of civil litigation generally.
[20] Costs therefore fall to be determined pursuant to the court’s broad discretion confirmed by s.131 of the Courts of Justice Act, R.S.O. 1990, c.C.43, as expanded by Rule 57.01 of the Rules of Civil Procedure.
Entitlement
[21] Given the unqualified success of Mr Snowden in relation to the Township’s motion for leave to appeal, as well as the general indemnity principle[^1], I see no reason why costs should not follow the event.
[22] In particular, I do not accept the Township’s submission that no costs should be awarded simply because the “issues were of great concern to both parties”, and required the involvement of the Court “to resolve a genuine dispute between the parties”. The same could be said of all legitimate civil litigation in this Province, and such an approach accordingly would run counter to Ontario’s well-established approach to cost awards.
[23] In my view, Mr Snowden is entitled to a measure of costs in relation to the Township’s motion for leave to appeal. The more challenging question relates to their proper quantification.
Scale
[24] As noted above, Mr Snowden asks that he be awarded costs on a substantial indemnity basis.
[25] However, in the particular circumstances of this case, I see no justification for such an approach.
[26] There apparently were no settlement offers that might have warranted an award of costs on an elevated scale, having regard to Rules 49.10 or 49.13. For example, there was no offer suggesting that the Township acted unreasonably, in the sense of putting all concerned to the needless time and expense of a court hearing that might have been avoided by acceptance of an offer shown to have been reasonable, after the fact.
[27] Settlement offers accordingly have no relevance to the cost determination before me, at least insofar as a determination of the appropriate scale of costs is concerned.
[28] Nor was I provided with any authority to support Mr Snowden’s contention that a citizen inherently is deserving of costs on an elevated scale when the opposing party in the litigation is a government entity.
[29] In my view, if there is any justification for awarding costs to Mr Snowden on an elevated scale, it would have to focus on some kind of extraordinary conduct by the Township that merits condemnation.
[30] In particular, although the court has a broad discretion in relation to costs, our appellate courts repeatedly have emphasized that awards of costs on a partial indemnity basis generally strike the proper balance cost benefits to be enjoyed by a “winner” and cost burdens to be borne by the “loser”, and that elevated cost awards should be reserved for “rare and most exceptional” cases where the conduct of a litigant warrants condemnation. See, for example, Foulis v. Robinson (1978), 21 O.R. (2d) 179 (C.A.), and Isaacs v. MHG International Ltd., (1984), 1984 1862 (ON CA), 45 O.R. (2d) 693 (C.A.)
[31] The sort of conduct meriting elevated cost awards has been described in various ways.
[32] In Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p.134, McLachlin J., (as she then was), indicated that elevated cost awards are warranted “only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”.
[33] In Mortimer v. Cameron (1994), 1994 10998 (ON CA), 17 O.R. (3d) 1 (C.A.), and McBride Metal Fabricating Corp. v. H&W Sales Co. (2002), 2002 41899 (ON CA), 59 O.R. (3d) 97, whose principles were echoed and emphasized again by the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), conduct warranting elevated cost awards was described as “reprehensible”, “egregious”, or “acts that clearly indicated an abuse of process”, justifying enhanced costs as a form of chastisement.
[34] In my view, the Township demonstrated, in its approach to this matter, no such conduct.
[35] As Mr Snowden’s own counsel commendably acknowledged and emphasized, in his written cost submissions and outline, there was no suggestion or accusation being made that the Township acted in bad faith in creating or defending its by-law. Moreover, it also commendably was acknowledged and emphasized that counsel for both parties actually “worked well together”; e.g., to bring the parties’ dispute before the court in a civil manner.
[36] In the result, it seems to me that Mr Snowden’s claim for substantial indemnity costs essentially is based on little more than the Township’s lack of success, and a suggestion that the Township should have realized, before bringing its motion for leave to appeal, that it would not succeed.[^2]
[37] That is not an adequate basis for awarding costs on an elevated scale.
[38] Costs in this case should be awarded on a partial indemnity basis.
Quantification
[39] In arriving at a global determination of a cost award that is “fair and reasonable” in this particular case, having regard to all the circumstances, my considerations include but are not limited to those outlined below.
AMOUNT CLAIMED AND RECOVERED – RULE 57.01(1)(a)
[40] Rule 57.01(1)(a) permits the court to consider “the amount claimed and the amount recovered in the proceeding”.
[41] The nature of this particular court proceeding did not involve monetary claims or recovery per se.
[42] However, successful resistance to the Township’s motion for leave to appeal was vital to preservation of the large accessory building Mr Snowden already had built on his property, with the assistance of professional contractors.[^3] It also was vital to Mr Snowden’s continued ability to use the property in question to house farm equipment and farm machinery.
[43] While no precise monetary value was attributed to such matters, I accept that the motion for leave had considerable significance for Mr Snowden.
PRINCIPLE OF INDEMNITY – RULE 57.01(1)(0.a)
[44] Rule 57.01(0.a) permits the court to consider, in exercising its cost discretion, “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer”.
[45] In its responding cost submissions, the Township accepts the partial indemnity rates charged by Mr Snowden’s lawyers and law clerk as appropriate, and I independently agree that they are.
[46] The Township also accepts, subject to certain specified exceptions, that the time devoted to this matter by Mr Snowden’s lawyers and law clerk generally was appropriate.
[47] Those exceptions relate to the substantial time devoted by junior counsel, (called to the bar in 2017), in connection with such matters as review of the Township’s materials, preparation of Mr Snowden’s responding factum and book of authorities, and communications with opposing counsel and Mr Snowden. The Township suggests such time was excessive, and approximately four times what it should have been.
[48] Of course, cost indemnification is tempered by the need for all involved in our justice system to focus on cost control and proportionality, as emphasized by our Rules of Civil Procedure. For example, this is reflected in:
• Rule 1.04(1), the provisions of which include a direction to construe the rules, (and therefore Rule 57.01 as well), in a manner that will promote securing “the least expensive” determination of a civil proceeding on its merits; and
• Rule 1.04(1.1), which obliges the court to apply the rules and make orders, (including those relating to cost awards), in a manner “proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.
[49] However, I also am mindful of the general admonition, voiced by Justice Nordheimer (as he then was) in Basedo v. University Health Network, [2002] O.J. No. 597 (S.C.J.), but embraced by our Court of Appeal in Boucher v. Public Accountants Council (Ontario), supra, at paragraph 27, that “it is not the role of the court to second-guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered”.
[50] In this particular instance, it seems to me that the time spent on the matter by junior counsel was higher than it should have been, no doubt owing to inefficiencies that tend to decline with the benefit of increased legal experience. Having said that, I also am mindful of the reality, I think, that allowance for such inexperience and inefficiencies is at least partially reflected in the very modest hourly rate, for junior counsel, employed in the relevant partial indemnity calculations.
[51] No issue was taken with the disbursements and applicable HST claimed by Mr Snowden, and I independently find them to be appropriate in the circumstances.
REASONABLE EXPECTATIONS OF UNSUCCESSFUL PARTY – RULE 57.01(1)(0.b)
[52] The Township chose not to supply me with any information detailing the time, legal fees and disbursements devoted to the matter from its perspective.
[53] As emphasized by such authorities as Smith Estate v. Rotstein, 2011 ONCA 491, [2011] O.J. No. 3075 (C.A.), at paragraphs 50-51, leave to appeal refused, [2011] S.C.C.A. No. 441, and my own comments in Valastro v. The Corporation of the City of London, [2013] O.J. No. 1353, at paragraph 12(b), an unsuccessful party’s failure to supply information concerning its own costs is an important consideration in assessing the parties’ reasonable expectations, and permits an inference that the resources devoted to the matter by the unsuccessful party were comparable to those expended by the successful party.
[54] However, as emphasized by the provisions of Rule 57.01(0.b), viewed in context, the amount of costs that an unsuccessful party could reasonably expect to pay is but one factor to be considered.
[55] Moreover, the court’s independent obligation to determine what conforms to that “overriding principle of reasonableness” is not eliminated or constrained by an unsuccessful party’s failure to tender its own bill of costs, or otherwise supply the court with an indication of the fees the unsuccessful party incurred in dealing with that matter.
APPORTIONMENT OF LIABILITY – RULE 57.01(1)(b)
[56] Rule 57.01(1)(b) permits the court to consider, in exercising its cost discretion, “the apportionment of liability”.
[57] In this case, Mr Snowden was entirely successful, in terms of defeating the Township’s motion for leave to appeal the OMB’s decision to the Divisional Court.
COMPLEXITY OF PROCEEDING AND IMPORTANCE OF ISSUES – RULES 57.01(1)(c) AND RULES 57.01(1)(d)
[58] Rules 57.01(1)(c) and 57.01(1)(d) permit the court to consider, in exercising its cost discretion, “the complexity of the proceeding” and “the importance of the issues”.
[59] In this case, the Township accepts counsel for Mr Snowden’s characterization of this matter as one involving at least “medium complexity”, and I agree. While the immediate developments leading to the parties’ particular dispute where somewhat contained, they took place within a broader framework of provincial, County and Township planning policies that needed to be reviewed, examined and analysed. As outlined in my earlier decision, there also were numerous potential legal issues to be considered.
[60] For present purposes, I also accept that the issues in this case were of fundamental importance to the parties.
[61] As noted above, successful resistance to the Township’s motion for leave to appeal was vital to finalizing Mr Snowden’s ability to maintain his accessory building and its uses.
[62] From the Township’s perspective, there was significant concern about enforcing its by-laws, and about the need to challenge what it viewed as a precedent capable of substantially undermining the planning goals and policies reflected in those by-laws. For the reasons outlined in my earlier decision, I do not think the underlying OMB decision has the precedential value the Township feared it might have. However, I also do not question the existence of the Township’s legitimate beliefs and fears in that regard, and its good faith efforts to pursue the matter accordingly for an appropriate legal determination by the Divisional Court.
CONDUCT AND/OR STEPS THAT LENGTHENED PROCEEDING – RULES 57.01(1)(e) AND 57.01(1)(f)
[63] Rule 57.01(1)(e) permits the court to consider, in exercising its cost discretion, “the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding”.
[64] Rule 57.01(1)(f) permits the court to consider whether any step in the proceeding was “improper, vexatious or unnecessary”, or “taken through negligence, mistake or excessive caution”.
[65] In my view, these are not factors that resonate significantly in this case.
[66] In his cost submissions, counsel for Mr Snowden made reference to the fact that the Township mistakenly commenced its motion for leave to appeal in Hamilton rather than London, and that an adjournment was required owing to procedural irregularities in certain service of material effected by the Township.
[67] However, there was no attempt to identify or quantify any costs that may have been thrown away by Mr Snowden as a result of such matters.
[68] Nor was any dispute taken, by way of reply, with the Township’s responding indications that the relevant associated delays were minimal, and that Mr Snowden actually suffered no prejudice as a result of such errors or corresponding delay. In that regard, I independently have difficulty seeing how Mr Snowden may have been prejudiced by such delays, especially since he apparently continued to enjoy the ongoing and uninterrupted benefits of the accessory building in the meantime.
REFUSAL TO MAKE APPROPRIATE ADMISSIONS – RULE 57.01(1)(g)
[69] The parties agreed this was not a relevant factor or consideration in the determination of an appropriate cost award in this case. I independently share that view.
ANY OTHER MATTER RELEVANT TO COSTS – RULE 57.01(1)(i)
[70] No additional matters were identified, by the parties, under this broad residual heading of cost considerations.
Conclusion
[71] It has been said many times, and in many ways, that discretionary cost determinations are far from an exact science.
[72] Again, the overall goal is to award costs in an amount that is fair and reasonable in a particular proceeding – having examined various factors such as those outlined in Rule 57.01.
[73] Having regard to all the circumstances of this particular case, and the overriding principle of reasonableness, I think justice will be served if my discretion is exercised so as to award Mr Snowden his costs of the motion for leave to appeal, fixed in the all-inclusive amount of $8,000.00.
[74] An order shall go accordingly.
“Justice I. F. Leach”
Justice I.F. Leach
Date: January 3, 2018
[^1]: See Rules 57.01(1)(0.a) and 57.01(1)(b).
[^2]: It was suggested, for example, that the Township should have known that the granting of leave to appeal from the OMB’s decision was “particularly unlikely” in these circumstances “because there was no evidentiary dispute of significance. In my view, the suggestion is non-sensical. An “evidentiary dispute” would relate to disagreement about underlying facts. However, pursuant to s.96(1) of the Ontario Municipal Board Act, supra, an appeal lies from the OMB to the Divisional Court, with leave of the Divisional Court, only on questions of law. The Township framed its motion for leave accordingly, focusing on suggested issues of law. In any event, it seemed to me that the issues raised by the motion for leave were not straightforward, and that this was not a situation where the outcome of the motion for leave could be readily predicted or presupposed without the Township legitimately exercising its legal rights to have the issues properly considered and determined.
[^3]: In the course of the hearing before me, I was presented with photographs of the building , details of its dimensions, and information about how and when it came to be erected on Mr Snowden’s property. I nevertheless do not recall being presented with any evidence concerning associated costs of construction, or the monetary value of the completed building.