Carsons’ Camp Limited v. Municipal Property Assessment Corporation, 2009 ONCA 620

CITATION: Carsons’ Camp Limited v. Municipal Property Assessment Corporation, 2009 ONCA 620

DATE: 20090820

DOCKET: C46147 and C46186

COURT OF APPEAL FOR ONTARIO

Simmons, MacFarland and Rouleau JJ.A.

BETWEEN

Carsons’ Camp Limited

Applicant (Respondent/ Appellant by cross-appeal)

and

Municipal Property Assessment Corporation and The Corporation of The Town of the Town of South Bruce Peninsula

Respondents (Appellants/ Respondents by cross-appeal)

Counsel:

Christian G. Schulze for the appellant, respondent by cross-appeal, Municipal Property Assessment Corporation

Donald R. Greenfield for the appellant, respondent by cross-appeal, the Corporation of the Town of South Bruce Peninsula

John L. O’Kane for the intervenors for County of Bruce, County of Prince Edward, County of Huron, County of Lambton, County of Brant, County of Simcoe, County of Grey, United Counties of Prescott-Russell, City of Sarnia, City of Quinte West, City of Elliot Lake, Municipality of East Hawkesbury, Township of Ear Falls, Township of Tay, Town of Goderich and Town of Espanola and Town of Lincoln

Peter T. Fallis for the respondent, appellant by cross-appeal, Carsons’ Camp Limited

Shannon M. Chace-Hall for the intervenor the Attorney General of Ontario

Heard: October 15 and 16, 2007

On appeal from the judgment of Justice Hugh M. O’Connell of the Superior Court of Justice dated October 2, 2006, with reasons reported at (2006), 49 R.P.R. (4th) 288.

SUPPLEMENTARY REASONS

[1] At the conclusion of the appeal in this matter counsel advised the court that they had agreed that the successful party should be awarded costs fixed at $30,000 inclusive of GST and disbursements.

[2] In its reasons issued January 14, 2008, the court acted on the agreement of the parties and awarded the appellants costs fixed at $30,000 inclusive of GST and disbursements.

[3] Subsequently, the court was advised that counsel’s agreement as to costs was premised on a misunderstanding and counsel asked for and were granted leave to make submissions on the issue of costs.

[4] The appellants seek costs of $64,600.25 for the appeal and $69,774.53 for the proceedings in the lower court. The respondent submits that there should be no order as to costs both in the original application and in the Court of Appeal.

[5] The misunderstanding with respect to costs arose when, sometime prior to the hearing of the appeal, the appellants’ solicitor contacted the respondent’s solicitor and proposed that the party succeeding on appeal be awarded costs fixed at $15,000.

[6] The respondent’s solicitor understood that the proposal would cover both the costs of the appeal and the original application and responded that $30,000 would be acceptable. The appellants’ solicitor agreed but his understanding was that the $30,000 was only with respect to the appeal costs.

[7] In light of the misunderstanding, the court is prepared to amend its earlier order as to costs. In our view, the appellants’ original proposal of costs being fixed at $15,000 for the appeal was not unreasonable.

[8] The case raised important issues of interpretation of the Assessment Act, R.S.O. 1990, c. A31 not previously considered by this court. Given the magnitude of the impact that the change in the way properties such as those owned by the respondent were assessed had on the respondent, the representative nature of the application made by it, as well as the public interest involved in the resolution of the issues raised in this matter, we consider that the award of costs should be modest. We therefore, agree with the original amount proposed by the appellants and award cost of the appeal fixed at $15,000 inclusive of GST and disbursements.

[9] The same considerations apply with respect to the original application and we therefore, award the appellants costs for the original application fixed in the amount of $15,000 inclusive of GST and disbursements. We make no order as to the costs incurred to prepare these most recent cost submissions.

[10] Our January 14, 2008 judgment is to be amended accordingly.

“J.M. Simmons J.A.”

“Paul Rouleau J.A.”

“J.L. MacFarland J.A.”