Court of Appeal for Ontario

Date: 2017-08-25 Docket: C62477

Judges: Feldman, Sharpe and Roberts, JJ.A.

Between

The Corporation of the City of Burlington Appellant (Respondent in Appeal)

and

Burlington Airpark Inc. Respondent (Appellant)

Counsel

John B. Laskin and Peter E.J. Wells, for the appellant

Ian Blue, Q.C. and Anna Husa, for the respondent

Heard: March 28, 2017

On appeal from: the judgment of Justice M.R. Gibson of the Superior Court of Justice, dated June 30, 2016.

Costs Endorsement

[1] The parties agreed to fix the costs of this successful appeal in the amount of $40,000 inclusive of disbursements and taxes. In para. 53 of our decision we indicated that if the parties were not able to agree as to the costs of the underlying application, they could make submissions in writing. We have been advised that the parties do not agree and we have now received their written submissions.

[2] Airpark, respondent on the application, asks for costs of the application on a partial indemnity basis fixed at $149,917.90. The City was the successful party below and the application judge awarded the City costs of the application on a substantial indemnity basis fixed at $118,327.53.

[3] In view of our conclusion on the merits of this appeal, we are not persuaded that the application judge's adverse findings against Airpark are a sufficient reason to deny Airpark its costs of the application. However, we cannot agree that it could have been in the reasonable contemplation of the City that it would be faced with an award of partial indemnity costs that is 25% higher than the substantial indemnity costs it incurred, particularly as the City was the applicant.

[4] In our view, a reasonable award to Airpark for the costs of the application is $80,000, inclusive of disbursements and taxes, the amount the City sought by way of partial indemnity costs before the application judge and we so order.

K. Feldman J.A.

Robert J. Sharpe J.A.

L.B. Roberts J.A.