CITATION: Paudash Shores Cottagers Association v. Ontario (Ministry of Natural Resources), 2012 ONSC 4863

DIVISIONAL COURT FILE NO.: 467/11

DATE: 20121002

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Paudash Shores Cottagers Association v. Her majesty the Queen in Right of Ontario (Ministry of Natural resources) and ross e. duncan

BEFORE: Justices Swinton, Sachs and Wilton-Siegel

COUNSEL: Colin P. Stevenson and J. Daniel McConville, for the Applicant

Eunice Machado, for the Respondent Ministry of Natural Resources

Ian Cantor, for the Respondent Ross E. Duncan

HEARD AT TORONTO: by written submissions

E N D O R S E M E N T

[1] The applicant, Paudash Shores Cottagers Association, seeks costs of the application for judicial review on a substantial indemnity basis in the amount of $90,180.00 plus disbursements of $2,505.73 and applicable HST. It seeks those costs from both the respondent Ross E. Duncan and the Ministry of Natural Resources.

[2] Mr. Duncan accepts that costs should follow the event, but submits that the quantum sought is excessive. He also argues that the payment should not be ordered until after the Minister has determined his application for a permit under the Aggregate Resources Act.

[3] The Ministry argues that it should not be liable for costs. Alternatively, if costs are awarded against it, the amount should be modest.

[4] There will be no costs award against the Ministry. The real dispute in this application was between Mr. Duncan and the applicant.

[5] While the applicant is entitled to costs because of its success in the application, this is not a case where the award should be on a substantial indemnity basis. Despite Mr. Duncan’s apparent change in position during the course of the litigation with respect to the use of his land as a borrow pit, his conduct in the litigation is not so harsh and vexatious that a punitive costs award should be made.

[6] We agree with the submission made on behalf of Mr. Duncan that the costs sought are excessive. There should be no award to cover the $22,750 associated with the work of Mr. Conway, a retired lawyer and member of the cottagers’ association, who was a witness in the proceedings and who provided research assistance. He was not counsel, but, in effect, a party.

[7] Mr. Duncan suggests that costs in the range of $20,000 plus disbursements of $1,127.67 would be reasonable. The hearing in this matter took about a half day. There were no cross-examinations and no expert witnesses. His counsel argues that the proposed amount would be within the reasonable contemplation of Mr. Duncan as the unsuccessful party, given the amount Mr. Duncan was billed for legal fees.

[8] Despite these considerations, we accept the applicant’s argument that presentation of its case was made more difficult and costly because of the shifting positions taken by Mr. Duncan. In the circumstances, $30,000 inclusive of HST and disbursements is a fair and reasonable amount for costs.

[9] Despite Mr. Duncan’s request that the obligation to pay costs should be deferred until the determination of his permit application, we would not make such an order. He was unsuccessful on this application, and he should pay costs as a result.

[10] Accordingly, Mr. Duncan is ordered to pay costs to the applicant in the amount of $30,000 inclusive of HST and disbursements.

Swinton J.

Sachs J.

Wilton-Siegel J.

DATE: October 2, 2012