CITATION: St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 479
DATE: 20100707
DOCKET: C44716
COURT OF APPEAL FOR ONTARIO
Laskin, Rouleau and Epstein JJ.A.
BETWEEN
St. Elizabeth Home Society (Hamilton, Ontario)
Plaintiff (Appellant)
and
City of Hamilton, in its capacity as successor of the Corporation of the City of Hamilton, City of Hamilton, in its capacity as successor of the Regional Municipality of Hamilton-Wentworth, Ruth Schofield and Marilyn James
Defendants (Respondents)
Chris G. Paliare, Margaret L. Waddell and George A. Babits, for the appellant
John F. Evans, Q.C., Paul R. Sweeny and Shane van Engen, for the respondents, the City of Hamilton, in its capacity as successor of the Regional Municipality of Hamilton-Wentworth, Ruth Schofield and Marilyn James
Peter M. Jacobsen, Carlos Martins and Adrienne Lee, for the respondent, the City of Hamilton, in its capacity as successor of the Corporation of the City of Hamilton
Heard: September 14, 15, 16, 17 and 18, 2009
On appeal from the judgment dated December 13, 2005, and the costs order dated December 31, 2007, of Justice David S. Crane of the Superior Court of Justice.
COSTS ENDORSEMENT
[1] On April 16, 2010, we dismissed the appellant’s appeal on the issue of liability but allowed, in part, the appeal from the trial judge’s cost order.
[2] The respondents seek a combined total of $675,880.87 in costs. The appellant submits that, given the divided success, there should be no order for costs or, in the alternative, the award should be in the range of $25,000 to $45,000.
[3] The appellant argues that the respondents conducted the appeal as if the amalgamated entities were still separate. This resulted in substantially increased costs of the appeal as well as causing the appellant to incur additional costs by having to deal with two sets of counsel, rather than one set. The appellant further submits that the reasonable expectation of the parties is such that an award of costs substantially less than the amount sought is appropriate.
[4] In our view, the respondents are entitled to costs. The bulk of this 5-day appeal from a 142-day trial related to the issue of liability. On this issue the respondents were totally successful.
[5] With respect to the amount of costs, the award should be reasonable taking into account the fact that, although the appeal raised numerous factual and legal issues, the legal issues were straight forward. Further, for the reasons set out in our decision on the appeal, the respondents should only recover one set of costs. Although we recognize that the respondents divided their argument so as to reduce duplication, much duplication nonetheless remained. Finally, the amount awarded should reflect the fact that the appellant did have a measure of success in the cost appeal, resulting in a reduction in the costs award at trial by approximately $1.6 million. In the circumstances, we consider that an award of $125,000 is appropriate.
[6] In conclusion, therefore, the respondents are, collectively, awarded costs fixed at $125,000, inclusive of disbursements and GST.
“John Laskin J.A.”
“Paul Rouleau J.A.”
“Gloria Epstein J.A.”