Court File and Parties

CITATION: Robinson v. The Corporation of the County of Bruce, 2020 ONSC 6460

DIVISIONAL COURT FILE NO.: DC-19-443-ML

DATE: 20201103

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LAURA ROBINSON AND the SOUTHAMPTON CULTURAL HERITAGE CONSERVANCY, Applicants (Responding Parties)

AND: THE CORPORATION OF THE COUNTY OF BRUCE; THE CORPORATION OF THE TOWN OF SAUGEEN SHORES and THE PUBLIC GUARDIAN AND TRUSTEE, Respondents (Moving Party)

BEFORE: Swinton, Pattillo and Bloom JJ.

COUNSEL: Brendan Jones, for the Applicants (Responding Parties)

Julia Fischer, for The Corporation of the County of Bruce, Respondent (Moving Party)

HEARD: in writing

ENDORSEMENT

[1] The Corporation for the County of Bruce (the “County”) seeks costs in respect of the applicants’, Laura Robinson and The Southampton Cultural Heritage Conservancy, abandoned leave to appeal motion. The motion was directed to be heard by this panel by the Case Management Judge, Favreau J., on August 6, 2020.

[2] The applicants commenced an application against the County pursuant to s. 10 of the Charities Accounting Act, R.S.O. 1990, c. C.10, alleging the County breached the terms of a restrictive purpose charitable trust created to support the County archives. The County subsequently commenced an application seeking court approval of its actions under the trust.

[3] When the County refused to produce the records from closed meetings of both its museum committee and executive committee dealing with the issues in dispute, the applicants brought a motion seeking production of the minutes and records in respect of eight closed meetings of the executive committee and six closed meeting of the museum committee.

[4] On July 26, 2019, the Motion Judge allowed the applicants’ motion, in part, and ordered production of the minutes of an in-camera meeting of the museum committee on October 19, 2017. The applicants then sought leave to appeal that portion of the Motion Judge’s order which denied production of the records from the remaining meetings.

[5] The parties subsequently served and filed their material for the leave motion.

[6] The applicants also spearheaded a disclosure process outside the litigation, relying on s. 239.1 of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”) which resulted in the issuance of two closed meeting investigators’ reports dated December 2, 2019 and July 9, 2020 respectively, concluding that the museum committee and executive committee meetings which were the subject of the applicants’ proposed appeal were not properly closed in compliance with s. 239 of the Act. The latter report concluded that the executive committee meetings were closed for an “improper purpose”. As a result, the County has released the agendas, minutes and attached reports from the meetings rendering the applicants’ appeal of the Motion Judge’s order moot.

[7] In the absence of the applicants filing a notice of abandonment of their leave motion, the County submitted a request to the court in accordance with the Practice Direction to have the leave motion dealt with which resulted in the direction of Justice Favreau.

[8] The County seeks its costs of the abandoned motion on a substantial indemnity scale in the total amount of $6,051.15 which include the costs of responding to the leave motion and the costs of addressing the abandonment. The County submits the leave motion would not have been successful and the redacted records produced from the closed meetings would not have been ordered disclosed.

[9] The applicants submit that there were legitimate grounds for their leave motion, and it was brought in good faith. Further, the documents which have been subsequently produced are relevant to the issues in their application. They submit costs should be ordered in the cause.

[10] We agree with the County that given the Motion Judge’s order and reasons the leave motion would likely not have been successful. At the same time, however, we are concerned by the County’s actions in improperly closing the meetings giving rise to the issue.

[11] While Rule 37.09(3) provides that where a motion is abandoned the responding party is entitled to the costs of the motion forthwith, it grants the court the discretion to order otherwise. In the circumstances, we are of the view there should be no order of costs for the leave motion.

[12] The County’s motion is therefore dismissed. No costs are ordered in respect of the applicants’ leave to appeal motion.

Swinton J.

Pattillo J.

Bloom J.

Date of release: November 3, 2020