CITATION: Reid v. Bracebridge, 2021 ONSC 791
DIVISIONAL COURT FILE NO.: 465/19
DATE: 20210212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Pattillo and Lederer JJ.
BETWEEN:
DAVID RICHARD REID
Plaintiff/Respondent
– and –
ALLAN QUAILE, AREA MUNICIPALITY OF THE TOWN OF BRACEBRIDGE, DISTRICT MUNICIPALITY OF MUSKOKA, CHARLES PAINTER, AARON GROSSMAN AND C.C. TATHAM & ASSOCIATES, LTD.
Defendant/Appellant
Adrianne Lei, for the Plaintiff/ Respondent
Paul E.F. Martin, for the Defendant/ Appellant Area Municipality of the Town of Bracebridge
HEARD: January 25, 2021 by Video Conference
L. A. PATTILLO J.:
Introduction
[1] The defendant the Area Municipality of the Town of Bracebridge, properly named the Corporation of the Town of Bracebridge (the “Town”) appeals from the order of Casulo J. (the “Motion Judge”) dated June 27, 2019 (the “Order”) which set aside the consent order dismissing the plaintiff David Richard Reid’s (“Reid”) action CV-17-0048 as it pertains to the Town and consolidating that action with Reid’s action CV-15-107.
[2] For the reasons that follow, I allow the appeal.
Background
[3] Reid owns property in the Town. In 2005, he commenced an action against the Town for damages arising out of flooding to his property. That action was subsequently settled, in part, with the Town agreeing to undertake drainage improvements.
[4] In 2015, Reid commenced action CV-15-107 against the Town and the engineering firm that designed the storm water management system built after the settlement of the 2005 action (the “2015 Action”). The 2015 Action alleged that the operation of the storm water management system caused structural damage to the residential building on his property.
[5] While the 2015 Action was pending, the Town obtained an expert evaluation of the property that indicated the residence was unsafe as a result of which it issued orders under the Building Code Act declaring the property unsafe and prohibiting occupancy of the residence.
[6] In 2017, Reid commenced action CV-17-0048 against the Town and various other defendants as a result of the issuance of the orders (the “2017 Action”).
[7] The Town brought a summary judgment motion to dismiss the 2017 Action against it, returnable April 23, 2018. Reid had previously settled the 2017 Action against all the other defendants.
[8] On April 11, 2018, counsel for the Town, Charles Loopstra (“Loopstra”), sent an email to Reid’s counsel, Eric Gillespie (“Gillespie”), offering to settle the 2017 Action on the basis of a dismissal without costs.
[9] On April 18, 2018, Loopstra had a telephone call with Gillespie’s articling student during which they resolved the action. Following the call, Gillespie’s student sent Loopstra a copy of a release that Reid had signed in his settlement with one of the other defendants.
[10] Later that day, Loopstra confirmed the settlement in the following email sent to the student and copied to Gillespie:
We are confirming our telephone conversation of today. You have received instructions from your client to settle the 2017 Action on the following terms:
You will file a Notice of Discontinuance against the District of Muskoka;
You will consent to an Order dismissing the Action against all the other Defendants, including the Town of Bracebridge, without costs. We understand that Mr. Vernon [counsel to one of the other defendants] will be taking out such an order;
Your client will sign a release with respect to all claims made in the 2017 Action.
You have indicated that your client reserves the right to call evidence in the 2015 Action that was pleaded in the 2017 Action. We acknowledge that we cannot prevent you from calling evidence, subject to relevance and admissibility, but that such evidence cannot be used to pursue any claims or causes of action pleaded in the 2017 Action. Without limiting the generality of the foregoing, no claims can be advanced as a result of any conduct arising out of the issuance and enforcement of the Unsafe and Prohibiting Occupancy Orders.
On this understanding, we are advising the court that the matter has been settled.
[11] Loopstra sent a further email on April 18, 2018 to both Gillespie and his student attaching a release to be signed by Reid. Loopstra noted that he required Gillespie to sign a certificate of independent legal advice. The release essentially followed the form and content of the release earlier forwarded by Gillespie’s student save and except that at the end of the paragraph releasing all claims in the 2017 Action, Loopstra had added the following words:
and without limiting the generality of the foregoing all claims of any kind whatsoever arising from or pertaining to the Unsafe Building Orders dated September 30, 2016 and the Order prohibiting Occupancy of Unsafe Building dated November 4, 2016. Provided however, this release does not release the Releasees from any claims already pleaded by the Releasor against the Corporation of the Town of Bracebridge in Action CV-15-107.
[12] On April 26, 2018, a consent order dismissing the 2017 Action including all cross-claims against all defendants was signed by the Registrar and entered.
[13] On April 30, 2018, Gillespie’s student confirmed in an email that the 2017 Action had been discontinued against the District of Muskoka and enclosed a revised form of release, deleting reference to claims or damages sustained by the Town which were unknown and arose after the date of the release.
[14] Loopstra responded stating he could not agree to the changes on the ground that they related to both known and unknown losses suffered from the unsafe and prohibiting occupancy orders. He acknowledged that Reid’s claim for economic loss in the 2015 Action, which is a continuing claim, continued.
[15] On May 2, 2018, Loopstra sent Gillespie a further draft of the release, deleting the words in the second paragraph objected to by Gillespie.
[16] In the absence of a response from Gillespie’s office, the matter remained in abeyance until July 25, 2018 when Loopstra’ s law clerk sent an email noting they were awaiting receipt of the signed release and enclosing a further copy.
[17] In the absence of any response from Gillespie, on October 5, 2018, Loopstra sent a letter to Gillespie advising that he had received instructions to bring a Rule 49.09 motion to enforce the settlement. Loopstra stated it was the Town’s position that the release which had been amended at Gillespie’s request, incorporated the terms of the settlement and the concerns raised by Gillespie’s office at the time of the settlement. Loopstra demanded the signed release by October 15, 2018 or he would bring the motion.
[18] Gillespie responded by email on October 15, 2018 as follows:
As you know, our client is prepared to sign a release. The only issue appears to be any language that would limit his ability to pursue his 2015 action.
In this regard and as noted in your email of April 18, 2018, the more specific concern is his ability to call evidence in the 2015 action that was pleaded in the 2017 action. Clearly, the only reason he would wish to do so is to advance claims already pleaded in the 2015 action. This is the right that he seeks to preserve. If the 2017 action had never occurred, and your client had moved as it did against him, he would have had the ability to raise these actions as part of his 2015 claim. We are simply seeking to have a release that reflects what would have been the situation if the 2017 action had never been brought.
We understand that at trial there may be objections to such evidence based on relevance and other criteria for admissibility. That would also occur irrespective of whether the 2017 action was ever brought. We are not seeking to limit these rights in any way.
It is our understanding that your client had agreed to this approach. Therefore, it is just the wording of the release to reflect this understanding that needs to be finalized.
[19] Loopstra responded the same day, sending a further revised release which added the words “or prevent the Releasor from calling evidence in the 2015 Action subject to relevance and admissibility” to the end of the wording in the first full paragraph as set out in paragraph 11 above (the “October 15, 2018 release”).
[20] In his email enclosing the October 15, 2018 release, Loopstra stated that because he had previously conceded that the release did not prevent Reid from calling evidence subject to admissibility and relevance, he did not think it necessary to put it in the release, however, to get it signed, he added that wording. The email concluded: “Please confirm your client will now sign the attached release, failing which we will bring our motion and seek costs.”
[21] Gillespie responded later that day stating he had forwarded the October 15, 2018 release to Reid and “called him to ask that he review asap. We hope to have instructions by tomorrow and will contact you then.”
[22] On October 16, 2018, Gillespie sent an email to Loopstra which stated: “We have spoken to Mr. Reid. He will be attending at our offices in person this Friday to sign the release. We thank you again for your assistance in moving things forward.” Loopstra responded stating that he would hold off on the motion pending receipt of the release on Friday.
[23] On Friday October 19, 2018, Gillespie delivered a Notice of Intention to Act in Person on behalf of Reid in the 2017 Action.
[24] As a result, the Town brought the Rule 49.09 motion to enforce the settlement and require Reid to execute the October 15, 2018 release. In response, Reid brought a cross-motion to set aside the April 26, 2018 order dismissing the 2017 Action against the Town and consolidate his claims brought against the Town in both the 2015 Action and the 2017 Action.
The Motion Judge’s Reasons
[25] In her endorsement, after briefly setting out the position of the parties and noting that the record contained a number of emails between counsel as well as affidavits from both sides, the Motion Judge stated at paragraph 6:
- Based on the evidence before me, and after hearing the submissions of counsel, I find that Mr. Reid did not agree to the terms of the Full and Final Release. He did not ever give his lawyer instructions to agree to the Release. I find the execution of the release was always contingent on Mr. Reid reviewing the terms and agreeing to them.
[26] In reaching her finding that Reid did not agree to the terms of the release, the Motion Judge rejected the Town’s submission that based on the correspondence between counsel on October 15-16, 2018, Reid, by his counsel, had agreed to the terms of the October 15, 2018 release. She stated at paragraph 7:
- The Town submits that any errors in communication between counsel should be visited on Mr. Gillespie, who has put LawPRO on notice. This would be true if, for example, the Plaintiff had provided instructions to Mr. Gillespie, and Mr. Gillespie incorrectly conveyed them to counsel. However, this did not happen here.
[27] The Motion Judge next stated that in her view there was no ambiguity. At no time did Reid agree to the terms of the release.
[28] The Motion Judge concluded by allowing the relief sought in Reid’s cross-motion without reference to the Town’s motion.
Jurisdiction
[29] The Order allowing Reid’s cross-motion setting aside the order dismissing the 2017 Action against the Town and consolidating the 2015 and 2017 Actions is interlocutory.
[30] An appeal lies to this court from an interlocutory order of a Superior Court Judge, with leave: s. 19(1)(b) of the Courts of Justice Act, R.S.O. c. C. 43.
[31] On December 13, 2019, a panel of this court granted the Town’s motion for leave to appeal the Order, reserving the costs of the motion to the panel hearing the appeal.
Standard of Review
[32] As this is an appeal, the appellate standard of review applies. That standard is correctness in relation to an error of law; palpable and overriding error with respect to findings of fact and mixed fact and law (except where there is an extricable error of law, in which case it is correctness): Housen v. Nikolaisen, 2002 SCC 33.
[33] A palpable error is one that is plain to see; obvious: Housen para. 5. An overriding error is an error that is sufficiently significant to vitiate a finding of fact.
Position of the Parties
[34] The Town submits that the Motion Judge erred in dismissing its motion and allowing Reid’s cross-motion by:
a) Concluding the settlement was contingent on Reid reviewing the terms of the release and agreeing to them;
b) Failing to determine whether the Town’s October 15, 2018 release reflected the terms of the settlement;
c) Concluding that the terms of the October 15, 2018 release were not agreed to by Reid’s counsel on his behalf; and
d) Failing to require Reid to sign a release in accordance with the terms of the settlement.
[35] In response, Reid submits, based on the evidence before her, the Motion Judge properly exercised her discretion under Rule 49 to not enforce the settlement.
[36] Reid further submits that the Motion Judge did not err in concluding that the settlement was contingent on Reid reviewing and agreeing to the terms of the release. That finding was based on the evidence before her and particularly the evidence of Reid and Gillespie.
Legal Principles
[37] It is well settled that for there to be a binding settlement, the parties must intend to create a legally binding contract and agreement has been reached on all essential terms: Olivieri v. Sherman, 2007 ONCA 491 at para. 41, citing Bawitko Investments Ltd. v. Kernels Popcorn Ltd.. Also see: Shete v. Bombardier, 2019 ONSC 4083 (Div. Ct.) at paras. 12-13.
[38] Where the settlement provides for a release, the cases establish that the terms of the release are not terms of the settlement unless the parties have agreed that further agreement to the terms is required. See: Birjasingh v. Coseco Insurance Co. at para. 25; Hedayat v. Murlee Holdings Limited, 2011 ONSC 5826 (ONSC) at para. 19; Sahota v. Sahota, 2016 ONSC 314 (Div. Ct) at para. 32.
[39] As a result, disagreement over the wording of a release does not generally result in repudiation of the settlement. As noted by CJBC McEachern in Fieguth v. Acklands Ltd., (1989) 59 DLR (4th) 114 (BCCA) at para. 44:
It should not be thought that every disagreement over documentation consequent upon a settlement even if insisted upon, amounts to a repudiation of a settlement. Many such settlements are very complicated, such as structured settlements, and the deal is usually struck before the documentation can be completed. In such cases the settlement will be binding if there is agreement on the essential terms. When disputes arise in this connection the question will seldom be one of repudiation as the test cited above is a strict one, but rather whether a final agreement has been reached which the parties intend to record in formal documentation, or whether the parties have only reached a tentative agreement which will not be binding upon them until the documentation is complete. Generally speaking, litigation is settled on the former rather than the latter basis and parties who reach a settlement should usually be held to their bargains. Subsequent disputes should be resolved by application to the court or by common sense within the framework of the settlement to which the parties have agreed and in accordance with the common practices which prevail amongst members of the bar. It will be rare for conduct subsequent to a settlement agreement to amount to a repudiation. [My emphasis.]
[40] Further, it is also well established that litigation counsel has implied authority to compromise a client’s position based on his or her retainer, unless a limitation of authority has been communicated to the other side: Scherer v. Paletta, [1966] 2 O.R. 524 (CA) at paras. 10 & 11.
[41] Rule 49.09 provides that where a party to an accepted offer to settle refuses to comply, the other party may make a motion for judgment in terms of the settlement. The rule gives the judge hearing the motion discretion to grant judgment or continue the proceedings.
[42] The test under Rule 49.09 is whether an agreement to settle was reached and, if so, should it be enforced based on the evidence: Bank of Montreal v. Ismail, 2012 ONCA 129 (CA).
Discussion
[43] In my view, the Motion Judge erred in allowing Reid’s cross-motion and effectively dismissing the Town’s motion for a number of reasons.
[44] First, the Motion Judge erred by failing to determine in respect of the Town’s Rule 49.09 motion whether an agreement to settle the 2017 Action had been reached between the Town and Reid and, if so, what the essential terms of the agreement were. She further erred, based on the evidence and, more particularly, the lack of evidence, in concluding that it was a term of the settlement that execution of the release was contingent on Reid reviewing and agreeing to its terms.
[45] As a consequence of the above errors, the Motion Judge further erred in failing to consider the terms of October 15, 2018 release and whether it embodied the terms of the settlement.
[46] Finally, the Motion Judge also erred in concluding, based on the communications between counsel on October 15 and 16, 2018, that Reid did not agree to the October 15, 2018 release.
i. Discretion to Not Enforce the Settlement
[47] As noted, in his factum, Reid submits the Motion Judge did not err in exercising her discretion under Rule 49.09 to not enforce the settlement. As the Town points out, however, the issue of whether the Motion Judge should exercise her discretion was not raised or argued before her on the motion nor does her decision involve the exercise of discretion.
[48] Reid’s argument concerning the exercise of discretion was not pursued before us on the appeal.
ii. Terms of the Settlement Agreement
[49] The uncontradicted evidence before the Motion Judge establishes that on April 18, 2018, Reid and the Town, through their counsel, agreed to settle the 2017 Action upon the following terms:
Reid will file a notice of discontinuance against the District of Muskoka;
Reid will consent to an order dismissing the 2017 Action against all defendants including the Town, without costs;
Reid will sign a release with respect to all claims made in the 2017 Action which will include a certificate of independent legal advice signed by Gillespie;
Reid is entitled to call evidence in the 2015 Action which was pleaded in the 2017 Action, subject to relevance and admissibility but such evidence cannot be used to pursue any claims or causes of action pleaded in the 2017 Action. Without limiting the foregoing, no claims can be advanced as a result of any conduct arising out of the issuance and enforcement of the Unsafe and Prohibiting Occupancy Orders.
[50] Neither Gillespie nor Reid dispute that a settlement of the 2017 Action was reached on April 18, 2018, or that the terms of the settlement are as set out above. There is no responding email from either Gillespie or his student taking issue with any of the terms of the settlement as set out by Loopstra and more importantly, providing for a term that Reid had to agree to the wording of the release.
[51] In fact, in furtherance of the settlement, Gillespie subsequently filed a notice of discontinuance of the 2017 Action against the District of Muskoka (required to obtain the consent dismissal order as the District had never been served with the Statement of Claim in the 2017 Action) and consented to the order dismissing the 2017 Action against all defendants, including the Town.
[52] In my view, given the background between the parties at the time of the settlement, including the claims in the 2017 Action and the fact that the 2015 Action remained, the essential terms of the settlement were: the 2017 Action would be dismissed without costs; Reid would provide a release to the Town of all claims in the 2017 Action; and Reid would be entitled to call evidence in the 2015 Action which was pleaded in the 2017 Action. The balance of the terms, the Notice of Discontinuance and the consent dismissal order were merely documentation to implement the settlement.
[53] In my view, there is no evidence that at the time the settlement agreement was reached, that parties agreed, as the Motion Judge found, that the execution of the release was “always” contingent on Reid reviewing the terms of the release and agreeing to them. More importantly, there is no evidence that requirement was an essential term of the settlement.
[54] As noted, Reid submits that both his evidence and the evidence of Gillespie support the Motion Judge’s finding. I disagree.
[55] Reid’s evidence concerning the requirement that he had to agree to the terms of the release is entirely subjective. He was not involved in the settlement discussions and the agreement, so he has no direct knowledge of what was agreed to. Gillespie’s evidence is not that his firm agreed the settlement was subject to Reid agreeing on the terms of the release but rather, “there would need to be a release and it would need to be negotiated between the parties.”
[56] Further, the fact that subsequent to the agreement on April 18, 2018, the parties negotiated certain wording in the release does not give rise to a term of the settlement that it was conditional on Reid agreeing to the terms of the release. As noted by D. Brown J. in Hedayat at para. 19:
… The terms of the release are not terms of settlement, and any issue the plaintiff may have with the wording of the release is not a valid reason to suggest that the parties had not reached agreement on all essential terms. See Bawitko Ltd. v. Kernals Popcorn Ltd., [1991] O.J. No. 495 (C.A.).
[57] As noted in the above at para. 44 of Fieguth, disputes over documentation in respect of settlement agreements should be resolved by application to the courts or by common sense within the framework of the settlement.
[58] Reid further relies on the October 2018 email correspondence between counsel as evidence supporting the Motion Judge’s finding. Specifically he relies on Gillespie’s statement that he sent the October 15, 2018 release to Reid and was seeking his instructions.
[59] The fact that Gillespie needed instructions from his client concerning the terms of the release speaks only to Gillespie’s retainer. It does not support the finding that some six months earlier, the parties agreed their settlement was contingent on Reid’s review and approval of the terms of the release.
[60] In the absence of any evidence, the Motion Judge’s finding that the settlement was contingent on Reid reviewing the terms of the release and agreeing to them, which was a finding of fact, is a palpable and overriding error.
iii. Failure to Consider the October 15, 2018 Release
[61] The issue raised by the Town’s motion was whether the wording of the October 15, 2018 release embodied the terms of the settlement.
[62] In his affidavit, Reid said that he was prepared to execute a release to the Town “provided the wording was satisfactory and what we had agreed upon verbally.” Notwithstanding that evidence, the Motion Judge, wrongly in my view, failed to consider whether the October 15, 2018 release embodied what was agreed upon - the issue raised by the Town in its motion.
[63] In the present case, it was a term of the settlement that Reid would release all claims made in the 2017 Action, (and without limiting that generality, any claims advanced in the 2017 Action as a result of any conduct arising out of the issuance and enforcement of the 2016 unsafe and prohibiting occupancy orders). The parties further agreed that Reid could call evidence which was pleaded in the 2017 Action in the 2015 Action, subject to relevance and admissibility.
[64] The October 15, 2018 release forwarded by Loopstra contained the following wording at the end of the first paragraph containing a general release of the claims in the 2017 Action and which was the only wording left to be resolved:
… and without limiting the generality of the foregoing all claims of any kind whatsoever arising from or pertaining to the Unsafe Building Orders dated September 30, 2016 and the Order Prohibiting Occupancy of Unsafe Building dated November 4, 2016. Provided however, this release does not release [the Town] from any claims already pleaded by [Reid] against the Corporation of the Town of Bracebridge in Action CV- 15-107 (“2015 Action”), or prevent [Reid] from calling evidence in the 2015 Action subject to relevance and admissibility.
[65] The above wording, apart from the bolded portion, was contained in the draft release Loopstra sent to Gillespie’s office on April 18, 2018 following agreement on the settlement and in subsequent drafts. Although Gillespie responded with concerns about other wording (which was resolved) no concern was raised about the above wording.
[66] While arguably, as Loopstra noted in his October 15, 2015 email enclosing the revised release, the agreement concerning the calling of evidence in the 2015 Action did not have to be in the release, Loopstra added the above bolded portion to the October 15, 2018 release to address the concern expressed by Gillespie in his email of the same date to the effect that Reid was concerned about his ability to call evidence in the 2015 Action that was pleaded in the 2017 Action.
[67] Based on the terms of the settlement, I am satisfied that the wording of the October 15, 2018 release encompasses the terms of the settlement. Accordingly, Reid had no basis to disagree with the wording of the release and more importantly to repudiate the settlement.
iv. Agreement of Counsel
[68] I am also satisfied that the Motion Judge further erred in concluding on the evidence that the communications between counsel in October 2018, culminating on October 16, 2018, did not amount to Reid’s agreement to the terms of the October 15, 2018 release.
[69] The context of counsels’ dealings leading up to and on October 16, 2018 is important to this issue and therefore worth repeating.
[70] On October 5, 2018, Loopstra sent an email and draft release to Gillespie stating that he would bring a Rule 49 motion to enforce the settlement if he did not receive a signed release by October 15, 2018.
[71] Gillespie responded on October 15, 2018 indicating Reid’s concern with the release as currently drafted. As noted, that concern related to ensuring he could call evidence pleaded in the 2017 Action in the 2015 Action. Loopstra immediately responded with the above noted revised wording in the release. He concluded: “Please confirm your client will now sign the attached release, failing which we will bring our motion and seek costs.”
[72] Gillespie responded saying that he had sent the draft release to Reid and had called him and asked that he review it as soon as possible. The next day, Gillespie sent a further email to Loopstra saying he had spoken to Reid and he would be coming into his office to sign the release on Friday (October 19, 2018).
[73] In the context of the October 5, 15 and 16, 2018 emails between counsel, it is clear in my view that Gillespie advised Loopstra that Reid had agreed to the terms of the October 15, 2018 release. As requested in Loopstra’s October 15, 2018 email providing the draft release, Gillespie confirmed in his email of October 16, 2018 that Reid would sign the release.
[74] The fact that Reid now says he did not agree to the terms of the October 15, 2018 release and his discussion with Gillespie on October 16 was to simply arrange to meet Friday is not relevant to whether counsel agreed to the terms of the release. The issue is what transpired between Loopstra and Gillespie and that is contained in the emails.
[75] At the time of the communications, notwithstanding Gillespie sought Reid’s instructions concerning the release, by subsequently advising Loopstra that Reid would sign the release, he was clearly communicating that Reid had reviewed the October 15, 2018 release and agreed to its terms. At no time was any limitation on his authority to do so ever communicated to Loopstra.
[76] Reid submits that Loopstra’s subsequent email saying he’d hold off on the motion pending receipt of the signed release indicates Loopstra understood Reid had not agreed to the release. I disagree. Given the emails between the lawyers and the fact that Gillespie had confirmed that Reid would sign the release, Loopstra was just saying he was not abandoning the motion until he received the signed release. Nothing more.
[77] In rejecting the Town’s submission, as she put it, that “errors in communication between counsel should be visited on Mr. Gillespie”, the Motion Judge stated that would be true if Reid provided instructions to Gillespie which he incorrectly conveyed to counsel but that did not happen. Reid’s evidence indicates, however, that is exactly what happened.
Conclusion
[78] For the above reasons, the appeal is allowed. The Order is set aside, and Reid is required to execute a full and final release in the form and content to the release appended as Schedule “A” to the Notice of Appeal (the October 15, 2018 release). In addition, the order of April 26, 2018 dismissing the 2017 action against the Town is reinstated.
[79] The Town was successful on this appeal and is entitled to its costs both of the appeal and the original motions.
[80] The Motion Judge awarded Reid costs of $12,000 in total for the motions. The Town submits those costs are fair and reasonable. I agree. Accordingly, the Town is awarded costs of $12,000 in total in respect of the motion and cross-motion.
[81] In respect of the costs of the appeal, the order granting leave reserved the costs to be determined on the appeal. The Town’s Cost Outline claims partial indemnity fees of $7,860.96 in respect of the leave and $9,616.96 for the appeal together with disbursements of $2,310.92.
[82] In response, Reid has submitted a Costs Outline for both the leave and the appeal claiming partial indemnity fees of $5,993.52 and disbursements of $813.60 for total costs of $6,807.12.
[83] The normal maximum cost award in respect of leave to appeal is $5,000 and I see no reason to depart from that amount. Further, while there is some difference between the costs claimed for the appeal, I accept that the costs of the appellant are generally higher. In my view, given the issues and the material filed, costs of the appeal in the amount of $11,000 is fair and reasonable.
[84] In summary, therefore, the Town is entitled to costs of the underlying motion/cross-motion ($12,000), the leave to appeal ($5,000) and the appeal ($11,000) for a total of $28,000. Payable by Reid, forthwith.
L. A. Pattillo J.
I agree _______________________________
Firestone R.S.J.
I agree _______________________________
Lederer J.
Released: February 12, 2021
CITATION: Reid v. Bracebridge, 2021 ONSC 791
DIVISIONAL COURT FILE NO.: 465/19
DATE: 20210212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Pattillo and Lederer JJ.
BETWEEN:
DAVID RICHARD REID
Plaintiff/Respondent
– and –
AREA MUNICIPALITY OF THE TOWN OF BRACEBRIDGE
Defendant/Appellant
REASONS FOR JUDGMENT
L. A. PATTILLO J.
Released: February 12, 2021