Vann Media Group Inc. v. Oakville (Town)

CITATION: Vann Media Group Inc. v. Oakville (Town), 2009 ONCA 609

DATE: 20090812

DOCKET: C48262

COURT OF APPEAL FOR ONTARIO

Armstrong, Juriansz and Rouleau JJ.A.

BETWEEN

Vann Media Group Inc.

Applicant (Respondent)

and

The Corporation of the Town of Oakville and Shelley Switzer

Respondents (Appellants)

COUNSEL:

Barnett H. Kussner and Kim Mullin, for the appellants

John A. Crossingham, for the respondent

HEARD: May 15, 2008

On appeal from the judgment of Justice Douglas K. Gray of the Superior Court of Justice dated January 18, 2008 and reported at 2008 CanLII 4268 (ON SC), 89 O.R. (3d) 385.

SUPPLEMENTARY REASONS

[1] In our judgment issued on November 10, 2008, we disposed of the costs for the appeal but did not deal with the costs of the original application. On the application before Gray J. Vann Media Inc. had been totally successful and was awarded costs fixed at $40,000 inclusive of GST and disbursements.

[2] The parties have been unable to agree on the appropriate cost disposition for that application.

[3] The Corporation of the Town of Oakville argues that the costs award for the application before Gray J. should mirror the award on appeal. On appeal, this court determined that there should be no order as to costs because of the divided success. The Town argues that the same reasoning should apply at the application level given that, as a result of the appeal, Vann only obtained limited relief as compared to the broad relief it had originally sought and obtained. Further, the Town submits that despite Vann’s allegation of bad faith, the court made no finding in that regard and making such an unproven allegation should be reflected in the cost award.

[4] Vann asks that the original order of $40,000 in costs be maintained. It submits that their application was necessary and successful in that part of the Town’s bylaw was struck down. It notes that this is the second successful attack it has brought against the Town’s bylaw and argues that it should not be burdened with all of the costs incurred in bringing this second successful challenge.

[5] In our view, Vann is entitled to costs. The award should not, however, be in the same amount as originally awarded by the application judge. The relief sought by Vann was well in excess of what they ultimately obtained. The unsuccessful portions of the application no doubt added significantly to both the time and cost of the proceeding. For these reasons, we consider that a reduced award of costs is appropriate and order that the costs award for the application be varied from $40,000 to $20,000 inclusive of GST and disbursements.

[6] There will be no order as to costs with respect to the submissions made by the parties on the issue of costs.

“R.P. Armstrong J.A.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”