Court of Appeal for Ontario

Date: 2018-04-25 Docket: C63305 and C63351

Judges: Doherty, Brown and Nordheimer JJ.A.

Parties

First Action

Between

David Schnarr Plaintiff (Respondent)

and

Blue Mountain Resorts Limited Defendant (Appellant)

Second Action

And Between

Elizabeth Woodhouse Plaintiff (Appellant/Respondent by cross-appeal)

and

Snow Valley Resorts (1987) Ltd. Aka Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350 Ontario Ltd. Defendants (Respondents/Appellants by cross-appeal)

Counsel

John A. Olah, for the appellant, Blue Mountain Resorts Limited

Edward Chadderton and Jeffery Beleskey, for the respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. Aka Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, and 717350 Ontario Ltd. (collectively, "Snow Valley")

Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for the respondent, David Schnarr and for the appellant/respondent by cross-appeal, Elizabeth Woodhouse

Hearing and Appeal

Heard: February 7-8, 2018

On appeal from the orders of Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

Costs Endorsement

[1] On March 28, 2018, this court released its decision allowing both appeals and the cross-appeal, setting aside the two orders below, and remitting the matters back to the Superior Court of Justice to proceed in accordance with this court's reasons. We invited the parties (other than the interveners) to make submissions on the issue of the costs of the appeal. We have now received and reviewed those submissions.

[2] The appellant, Blue Mountain, submits that there should be no order as to costs given the novelty of the legal issues raised in these appeals. The respondent, David Schnarr and the appellant/respondent by cross-appeal, Elizabeth Woodhouse, make the same submission. The Snow Valley respondents/appellants by cross-appeal submit that costs should be awarded to them on a partial indemnity basis in the sum of $25,000.

[3] In our view, there should not be any award of costs of the appeal. These proceedings are properly characterized as public interest litigation. They raised novel issues regarding the interplay between two provincial statutes. As such, in our view, Mr. Schnarr and Ms. Woodhouse fall within the second category of public interest litigation as set out in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, namely, they are litigants who have a pecuniary interest in the litigation but whose interests are modest in comparison to the cost of the proceedings. By the cost of the proceedings, in this context, we mean the ambit or scope of the proceedings. There was a much broader public interest involved in this case than the individual claims of Mr. Schnarr and Ms. Woodhouse, as the nature and number of interveners demonstrates. It is also appropriate, in cases where a novel question of statutory interpretation is involved, to make no order as to costs: Dam Investments Inc. v. Ontario (Minister of Finance), 2007 ONCA 527, 226 O.A.C. 40; Hare v. Hare (2006), 83 O.R. (3d) 766 (C.A.).

[4] Consequently, there will be no order for costs of the appeals.

"Doherty J.A."

"David Brown J.A."

"I.V.B. Nordheimer J.A."