Court File and Parties

CITATION: Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 830

DATE: 20091125

DOCKET: C48159

COURT OF APPEAL FOR ONTARIO

Feldman, Gillese and Rouleau JJ.A.

BETWEEN

Angela Jo-Anne Schneider and Robert Butcher

Plaintiffs (Respondents)

and

St. Clair Region Conservation Authority and The Corporation of the Township of Middlesex Centre

Defendants (Appellant)

Counsel:

Deborah Burlach, for the appellant

Anthony F. Steele, for the respondents

Heard: March 26, 2009

On appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated November 30, 2007 and reported at (2007), 2007 CanLII 60790 (ON SC), 89 O.R. (3d) 150.

COSTS ENDORSEMENT

[1] On September 9, 2009, the court released its decision allowing the appeal and setting aside the respondents’ judgment against the appellant St. Clair Region Conservation Authority. The Region was awarded costs of the appeal fixed at $18,000 inclusive of GST and disbursements.

[2] Subsequent to issuing our reasons, the parties made submissions with respect to the costs of the trial.

[3] After trial and the dismissal of the plaintiffs’ claim against the defendant Township of Middlesex Center, the parties agreed that the Township would be paid its costs fixed in the amount of $51,539.81 all inclusive together with interest at the rate of 6% per annum from December 3, 2007. It was further agreed by the parties that the costs of the Township would be paid by either the respondents or the Region, depending on the result of any appeals on the issue of the liability of the Region. The Township did not, therefore, participate in the appeal. In light of this agreement, we see no basis to interfere with the portion of the trial judge’s judgment relating to the Township’s costs and confirm that the respondents are to pay the Township’s costs as agreed.

[4] With respect to the Region’s trial costs, the region seeks costs in the amount of $50,000 inclusive of GST and disbursements. As compared to the Township’s costs and given the length of the trial, the amount sought does not appear to be excessive. In the context of this case, however, we nonetheless, consider that a reduced amount is more appropriate and would award $18,000 inclusive of GST and disbursements. We do so for the following reasons.

[5] First, the issues raised with respect to the Region’s liability involved an interpretation of s. 4(1) of the Occupier’s Liability Act, not previously decided by our court. The decision clarified the law respecting occupier’s liability in a significant respect.

[6] Second, the total amount of costs the respondents are being asked to pay is significant and would be disproportionate to the amount in issue. The Township’s costs have already been agreed to by the parties and cannot now be changed. In light of the amounts claimed and the issues involved, it would not be fair and reasonable to require the respondents to pay the full amount being claimed by the Region.

[7] The respondents asked the court to apportion the costs as between the two respondents. This was not sought at trial nor on appeal and we see no basis to accede to the respondents’ request.

[8] As a result, the Region is awarded the costs of the trial fixed at $18,000 inclusive of GST and disbursements.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”