COURT FILE NO.: D06-0004
DATE: 2006-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
11911260 ONTARIO LIMITED (c.o.b. FOAMING BRUSH CAR WASH),
Fawzia Saeed-Cockar, for the Applicant
Applicant
- and -
CITY OF THUNDER BAY and A.Q. THUNDER BAY PROPERTIES LTD.,
Rosalie A. Evans, for the Respondent City of Thunder Bay
Ian J. Lord, for the Respondent A.Q. Thunder Bay Properties Ltd.
Respondents
HEARD: Via Written Submissions
BEFORE: Zelinski J.
Decision On Costs
[1] On May 26, 2006, I released my Reasons in this matter. A.Q. Thunder Bay Properties Ltd. (AQ) sought an order dismissing 1191160 Ontario Limited (Foaming Brush)’s Application for Judicial Review (AJR) as a consequence of delay. Alternatively AQ sought “procedural directions and a timetable for service of materials and scheduling intending to assure an expedited review.”
[2] Initially Foaming Brush sought an adjournment of AQ’s motion which I denied. AQ argued that the adjournment was not essential and would only invite further delay. I agreed. Foaming Brush’s purported need for a costs order from the Ontario Municipal Board (OMB) whose decision was the subject of the AJR was not, in my opinion, critical to AQ’s motion before me, the merits of which were premised on procedural issues.
[3] For the reasons delivered I declined to order the dismissal of the AJR sought by AQ and went on to set timelines as requested in the alternative. As stated in my Reasons, Ms. Cockar for Foaming Brush consented, with modest changes, to a timetable presented by Mr. Lord on behalf of AQ. There was no need for her to do this as the Rules of Civil Procedure prescribe the timelines to be followed. The motion to dismiss the AJR, based on Foaming Brush’s failure to deliver requisite materials on time, failed because the times for doing so had not yet passed.
[4] In my Reasons I then suggested “that each party has had success” with respect to the costs of the motion before me. I specifically emphasized the fact of the dismissal “of the primary relief sought in this motion (dismissal of AJR) and Ms. Cockar’s accommodation of Mr. Lord’s timeline.” I did, however, permit either party to claim costs within 15 days of receipt by it of my Reasons. Opposing arguments were to be delivered 15 days thereafter.
[5] AQ delivered its claim for costs of $10,460.82 inclusive of fees and disbursements and GST on June 12, 2006.
[6] Foaming Brush delivered its arguments against any award of costs on June 21, 2006. It argued that each party should be ordered to pay its own costs or alternatively to fix costs, in its favour, of $10,720.
[7] Foaming Brush’s response to AQ was received within the time fixed by me. Its claim for its own costs did not.
[8] While I did not adjourn the original motion as requested by Foaming Brush, that, in my view, was the only success that AQ had on the merits. It lost the primary relief that he had sought and it is probable, although not argued, that I could not order timelines not consistent with the Rules if this had not occurred as a consequence of Ms. Cockar’s acquiescence.
[9] There will be no order as to costs of the motion.
The Hon. Mr. Justice R. E. Zelinski
Released: July 4, 2006
COURT FILE NO.: D06-0004
DATE: 2006-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
11911260 ONTARIO LIMITED (c.o.b. FOAMING BRUSH CAR WASH),
Applicant
- and –
CITY OF THUNDER BAY and A.Q. THUNDER BAY PROPERTIES LTD.,
Respondents
DECISION ON COSTS
Zelinski J.
Released: July 4, 2006
/mls