CITATION: Blandford Square Developments Limited v. Oxford (County), 2007 ONCA 467

DATE: 20070626

DOCKET: C45253 and C45255

COURT OF APPEAL FOR ONTARIO

GOUDGE, BLAIR AND LAFORME JJ.A.

BETWEEN:

BLANDFORD SQUARE DEVELOPMENTS LIMITED

Plaintiff (Appellant)

And

THE CORPORATION OF THE COUNTY OF OXFORD and THE CORPORATION OF THE CITY OF WOODSTOCK

Defendants (Respondents)

AND BETWEEN:

VINCORP FINANCIAL LTD.

Plaintiff (Appellant)

and

THE CORPORAITON OF THE COUNTY OF OXFORD and THE CORPORATION OF THE CITY OF WOODSTOCK

Defendants (Respondents)

Peter J. Lukasiewicz for the appellant Vincorp Financial Ltd.

Barry S. Wortzman, Q.C. and Sandra E. Dawe for the appellant Blandford Square

Steven Stieber, Murray Stieber and Gabrielle K. Kramer for the respondents

Heard: January 15, 2007 and released April 20, 2007

On appeal from the order of Justice Colin L. Campbell of the Superior Court of Justice, dated March 24, 2006, with reasons reported at (2006), 20 M.P.L.R. (4th) 27.

COSTS ENDORSEMENT

[1] On April 20, 2007, this court issued its reasons for judgment allowing the appeal in this matter. In those reasons, this court said that the appellants sought no change in the costs award at first instance. Both the appellants and the respondents agree that this was erroneous. As a result, the court sought and received written submissions as to the proper disposition of costs at first instance. These have been considered.

[2] At first instance the judge allowed the respondents’ motion for summary judgment in part, but dismissed the respondents’ various motions for other relief. He also dismissed the appellant’s motion for injunctive relief. He made a single costs award, and awarded substantial costs against the appellants because of his view that the failed injunction motion was the most significant issue before him but also presumably because the respondents were partially successful in their motions.

[3] This court reversed the decision granting the respondents partial summary judgment, with the result that the respondents were entirely unsuccessful at first instance, as the appellants had been.

[4] Given the result of the appeal, the landscape against which costs at first instance must be assessed has changed significantly. The costs ordered below cannot stand, since it cannot be said with certainty that the same costs order would have been made had the current landscape been in place at that point.

[5] In light of this reality, it is our view that the best course is to remit to the trial judge the costs of the various motions at first instance, all of which have been dismissed as a consequence of this appeal. The trial judge will be in the best position to assess their relative importance in light of the result of the trial.

[6] The costs order below is therefore set aside and the costs of the motions at first instance are all remitted to the trial judge who will hear this trial.

“S.T. Goudge J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”