Court File and Parties

CITATION: Leandro v. Town of Tecumseth, 2024 ONSC 1463

DIVISIONAL COURT FILE NO.: 1387/23

DATE: 2024/03/13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Guiseppe Leandro, Appellant

AND:

Town of new Tecumseth, Respondent

BEFORE: Sachs, Backhouse and Lococo JJ.

COUNSEL: R. Andrew Biggart, for the Appellant

Colleen E. Butler, for the Respondent

HEARD at Toronto: In Writing

ENDORSEMENT RE COSTS

[1] We have now received the parties’ submissions regarding the costs of this appeal and the application underlying the appeal. The Appellant submitted an Offer to Settle this matter 10 days before the hearing of the appeal. In that Offer the Appellant agreed to settle the appeal and the underlying proceeding on the basis of a consent order declaring that his facility was a permitted use under the Respondent’s Zoning By-Law. He also agreed to settle his partial indemnity costs at $22,600.00, inclusive of HST.

[2] In our view the amount of $22,600.00 is a fair, reasonable and proportionate amount for the Appellant’s partial indemnity costs up to the date of the Offer to Settle. The services incurred prior to the date of the Offer included one appearance to argue the application and preparing the material necessary to argue the appeal from the order staying the application.

[3] The Respondent submits that the Offer to Settle should not be taken into account for the purposes of assessing costs since it was not served in time to obtain instructions from the Town council. There is no issue that the Offer was served within the time period required by the Rules. Thus, the Respondent is arguing, in effect, that there should be a different time period imposed when an offer to settle is being made to a body like a Town Council that only meets at certain intervals. There is no support for such an argument in the Rules or in the case law. There is also no suggestion in the material before us that counsel for the Respondent took any steps to seek instructions from the Town Council on an emergency basis so that they could consider the Offer. Therefore, we do not accept the Respondent’s submission on this point.

[4] The Respondent also argues that the Appellant should receive no costs for the appearance in Superior Court that resulted in the stay of the application on the basis of prematurity and mootness. The Respondent states that since it did not raise these issues, it should not have to bear the costs associated with the decision based on these issues. The Respondent did not argue before the application judge that he should not apply the doctrines of prematurity and mootness and the Respondent made representations on the appeal supporting the application judge’s decision to stay. In view of this, we see no merit to its submission that it should not be liable for the costs associated with the stay that was erroneously granted.

[5] Therefore, we find that the Offer to Settle should be taken into account in assessing costs. Given this, we fix the Appellant’s costs as follows:

Partial Indemnity Costs incurred up to the date of the Offer to Settle: $22,600.00 (inclusive of HST)

Substantial Indemnity Costs after the date of the Offer to Settle up to the date of the appeal: $5789.33 (inclusive of HST)

Substantial Indemnity Costs associated with preparing costs submissions: $914.40 (inclusive of HST)

Total: $29,303.73

[6] In conclusion, the Respondent shall pay the Appellant his costs fixed in the amount of $29,303.73, all inclusive.

Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Lococo J.

Date: March 13, 2024