Court of Appeal for Ontario

Citation: Detlor v. Brantford (City), 2013 ONCA 688

Date: 2013-11-12

Docket: C53084

Before: Doherty, Laskin and Simmons JJ.A.

Between:

Aaron Detlor and The Haudenosaunee Development Institute Applicants (Appellants)

and

Corporation of the City of Brantford Respondent (Respondent)

Between:

Hazel Hill Applicant (Appellant)

and

Corporation of the City of Brantford Respondent (Respondent)

Between:

Ruby Montour and Floyd Montour Applicants

and

Corporation of the City of Brantford Respondent (Respondent)

Counsel:

Louis C. Sokolov and Jessica Orkin, for the appellants, Aaron Detlor, The Haudenosaunee Development Institute and Hazel Hill

Neal Smitheman, W. Thomas Barlow and Tracy A. Pratt, for the respondent, The Corporation of the City of Brantford

Michael Beggs, for the intervener the Attorney General of Canada

Heard: January 17, 2013

On appeal from the order of Justice Harrison S. Arrell of the Superior Court of Justice, dated November 19, 2010.

COSTS ENDORSEMENT

[1] The appellants submit that success on the appeal was divided. Therefore, they submit that:

(a) We should order no costs of the appeal; and

(b) We should reduce the costs ordered by Arrell J. by $117,000.00 – from $350,000.00 to $233,000.00. The appellants attribute the $117,000.00 to the by-laws application and the remaining $233,000.00 to the injunction motion. Consistent with their position that there should be no costs of the appeal because success was divided, they say that no costs should be ordered for the by-laws application.

[2] The City of Brantford contends that as we dismissed the appeal with "minor modifications", it was the successful party on the appeal. Therefore, Brantford submits that:

(a) It is entitled to costs of the appeal on a partially indemnity basis. It asks for $68,000.00; and

(b) The costs ordered by Arrell J. should not be reduced.

Costs of the Appeal

[3] We agree that Brantford was substantially successful on the appeal and is therefore entitled to costs of the appeal. However, although we upheld almost all of the impugned provisions of the two by-laws, the appellants did obtain some limited relief. We struck the ban on signs on the ground it infringed s. 2(b) of the Charter and could not be justified under s. 1. Further, Brantford conceded in oral argument that the prohibitions on the words "request" and "invite" in by-law 64-2008 could not be justified, and we struck those offending words from the by-laws.

[4] Because the appellants did achieve modest success on the appeal, we think it appropriate to reduce the costs Brantford would otherwise be entitled to. A fair and reasonable figure for the costs of the appeal is $25,000.00 all inclusive.

Costs before Arrell J.

[5] Brantford was successful on the injunction motion, which was the main proceeding before Arrell J., and, in the light of our decision, almost, though not entirely successful, in resisting the appellants' challenge to the two by-laws. In these circumstances, we are not persuaded that we should reduce the costs ordered by Arrell J. in the exercise of his discretion. His award seems fair and reasonable to us, even taking account of this Court's decision. Accordingly, we decline to disturb his award.

"Doherty J.A."

"John Laskin J.A."

"Janet M. Simmsons J.A."