Court File and Parties

Court File No.: 5943/16 Date: 2018-09-10 Ontario Superior Court of Justice

Between: Town of Cobalt, Applicant – and – Township of Coleman, Respondent

Counsel: Michael F. Sirdevan, for the Applicant Kathryn J. Pirie, for the Respondent

Heard: In Writing

Decision on Costs

WILCOX, J

[1] The applicant sought a finding that its use of its property in Coleman Township for the extraction of aggregates was permitted under the applicable zoning by-law. Following a hearing, the application was dismissed. Written costs submissions have been received and considered.

[2] Section 131 of the Courts of Justice Act leaves the costs of a proceeding to the discretion of the court. Rule 1.04(1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by the court, in addition to the result in the proceeding and any offer to settle, in exercising this discretion.

[3] “Modern costs rules are designed to foster three fundamental purposes: a. To indemnify successful litigants for the cost of litigation; b. To encourage settlements; and c. To discourage and sanction inappropriate behaviour by litigants.” [1]

[4] “The costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.” [2]

[5] As the successful party, the respondent is presumptively entitled to its costs in this matter on a partial indemnity basis. The applicant explicitly does not dispute this.

[6] The respondent seeks an order fully indemnifying it for the costs that it had incurred in the matter, totalling $199,329.84. The dispute between the parties has a long history, of which the application forms only a part. The respondent seeks its costs for the entire history, with all of its events. These include: a. attempts to negotiate an operator’s agreement/closure plan; b. a zoning by-law amendment application and appeal; and c. charges under the Provincial Offences Act which were stayed so the matter could be decided in the Superior Court of Justice.

[7] The applicant’s counsel objects to the portions of the respondent’s bill of costs amounting to $57,128.00 plus associated taxes which do not relate to the Superior Court application. I agree and would deduct those.

[8] The respondent seeks greater than partial indemnity costs on the basis that it had proposed an operator’s agreement to the applicant in 2015. It characterizes this in effect as a Rule 49 offer to settle. I disagree with this characterization. The notice of application was not issued until later, in 2016. The proposal was not done in the context of the application. I find that it does not meet the requirements of a Rule 49 offer. Consequently, costs will be assessed on a partial indemnity basis.

[9] Taking into account all of the above, I conclude that an award of costs of $85,000.00, inclusive of fees, disbursements and applicable taxes, is appropriate for the application and is payable by the applicant to the respondent within 30 days.

J. A. S. Wilcox Released: September 10th, 2018

References

[1] Fong v. Chan, 46 O.R. (3rd) 330 [2] Boucher v. Public Accountant’s Counsel (Ontario), [2004] O.J. No. 2634