Court File and Parties
COURT FILE NO.: 265/10 (Toronto) DATE: 2010-08-12
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: RICHARD LORELLO Appellant
- and -
PETER MEFFE Respondent
BEFORE: J. WILSON, SWINTON & NORDHEIMER JJ.
COUNSEL: Diane L. Evans, for the appellant Martin Sclisizzi and Ewa Krajewska, for the respondents
HEARD at Toronto: Written submissions
E N D O R S E M E N T
[1] On July 8, 2010, we quashed the appellant’s appeal from the judgment of Justice Penny under the Municipal Conflict Of Interest Act, R.S.O. 1990, c. M.50 in light of the Court of Appeal’s decision dated July 5, 2010 in Ruffolo v. Jackson, 2010 ONCA 472 holding that no right of appeal exists by an elector from a finding that a member did not breach ss. 5(1), (2) or (3) of the MCIA. We then invited written submissions on the subject of the costs of the appeal. We have now received and reviewed those submissions.
[2] The respondent seeks costs on a substantial indemnity basis in the amount of $35,779.80. Alternatively, he seeks costs on a partial indemnity basis in the amount of $20,534.60. The appellant submits that costs should be fixed on a partial indemnity basis in an amount between $2,000 to $5,000.
[3] We do not see any basis for making an award of costs on the substantial indemnity scale. An award of costs on that higher scale is justified where there has been reprehensible conduct by a party in the proceeding which warrants sanction by the court - see Hunt v. TD Securities Inc. (c.o.b. TD Evergreen) (2003), 2003 ONCA 3649, 66 O.R. (3d) 481 (C.A.). We do not accept that the conduct of the appellant here rises to that level. While the appellant was undoubtedly dilatory in pursuing his appeal with the result that the respondent had to take steps to bring the appeal forward, that is not a sufficient reason to justify an award of costs on the substantial indemnity scale.
[4] In terms of the quantum of costs, as we have just noted, there were steps that the respondent had to take to move the appeal forward. There was good reason for the respondent to need to take these steps given that he is running for re-election this fall and the presence of this unresolved appeal would have a detrimental effect on his campaign in that regard. The appellant must have been aware of this concern given the nature of the proceedings that he originally initiated. The appellant is therefore properly held responsible for the costs of those steps given the ultimate outcome of the appeal.
[5] In terms of those steps, there was an application to expedite the appeal; an application to dismiss the appeal for delay; a second application to dismiss the appeal for delay and the ultimate successful motion to quash. The two applications to dismiss the appeal for delay resulted from the failure of counsel for the appellant to file the appeal materials in accordance with a schedule that had been set down when the appeal was expedited. While we have some evidence that this failure was the result, at least in part, of some medical issues experienced by the appellant’s former counsel, that evidence does not adequately explain all of the delay that appears in the record regarding the progress, or lack thereof, of the appeal. Even those failures, however, are not properly visited on the respondent in terms of the costs of steps necessarily undertaken by him as a consequence.
[6] We are of the view that the respondent is entitled to costs of each of those steps. We have balanced the time that the respondent’s counsel took in respect of those steps against the nature and complexity of those steps and the reasonable expectation of the parties regarding the likely costs. In the end result, we believe that a fair figure for those costs in total is $10,000.
[7] The appellant will therefore pay to the respondent the costs of the appeal fixed in the amount of $10,000 inclusive of disbursements and HST within thirty days.
J. WILSON, J.
SWINTON, J.
NORDHEIMER, J.
DATE: August 12, 2010