COURT OF APPEAL FOR ONTARIO

DATE: 20040405

DOCKET: M30968 (M30332)

RE: HEIDI BYL, LITIGATION GUARDIAN OF COREY BYL, WILLIAM F. VAUGHN, LITIGATION GUARDIAN OF BRENT VAUGHN, ST. CATHARINES ASSOCIATION FOR COMMUNITY LIVING and COMMUNITY LIVING ONTARIO (Applicants in Judicial Review/Responding Party) – and - HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO (Moving Party for Leave to Appeal)

BEFORE: O’CONNOR A.C.J.O., MOLDAVER and GILLESE JJ.A.

COUNSEL: William J. Manuel for the moving party Andrew J. Roman and Margaret R. Sims for the responding party

HEARD: October 27, 2003

E N D O R S E M E N T

[1] The responding party requests costs with respect to three proceedings – its opposition to a stay motion in this court, its opposition to the application for leave to appeal and this motion for costs. In all, the responding party claims approximately $53,000.00 costs on a partial indemnity scale and $67,000.00 on a substantial indemnity scale.

[2] We have reviewed the submissions of the parties. In addition to costs of the leave to appeal motion already ordered in the amount of $1500, including GST and disbursements, in our view the responding party is entitled to costs of the stay motion. Although the Ministry was successful in obtaining a stay pending leave to appeal, the motion for leave to appeal was unsuccessful and the stay dissolved. The Ministry’s decision to terminate the responding party’s funding and to seize control of its assets has been quashed. In these circumstances, it is appropriate to award costs to the wronged party, a registered charity whose program was terminated, without notice, as a result of the Ministry’s actions.

[3] However, given the nature of the proceedings involved and the overlap of the materials that would have been used in the Divisional Court with those filed on the stay motion, we consider the amounts claimed to be excessive. We allow costs for the stay proceeding in the amount of $20,000.00, inclusive of G.S.T. and disbursements.

[4] We have reconsidered our costs order for the leave to appeal motion, as requested by the responding party, but decline to change that order.

“Dennis O’Connor A.C.J.O.”

“M. J. Moldaver J.A.”

“E. E. Gillese J.A.”