Peter T. Fallis

Following the dismissal of the applicant's application regarding a failed real estate transaction and the discharge of a Certificate of Pending Litigation, the parties could not agree on costs.

The respondents sought costs of $15,859.77, claiming partial indemnity costs up to the date of their offer to settle and substantial indemnity costs thereafter.

The court reviewed the principles of costs, including proportionality, hourly rates, and travel time.

The court reduced the hourly rate for travel time by 50% but ultimately found the total amount claimed by the respondents to be reasonable and proportional.

The applicant was ordered to pay the respondents' costs fixed at $15,859.77.

The applicant buyer sought a declaration that it had the exclusive right to terminate an Agreement of Purchase and Sale (APS) for a property requiring severance approval.

The respondent sellers had added a mutual termination clause during the sign-back process, which the buyer did not initial but included in subsequent offers.

The court found the APS was a binding contract and interpreted the mutual termination clause objectively, concluding that both parties had the right to terminate the agreement if severance approval was not obtained by the specified deadline.

The buyer's application was dismissed, and the Certificate of Pending Litigation was ordered discharged.

Following an application challenging the legality of a municipal by-law authorizing an agreement with a conservation organization to use an unopened road allowance for a public trail, the court had previously found the by-law illegal for failure to comply with municipal notice requirements but declined to quash it, dismissing the application.

The parties subsequently made written submissions on costs.

The applicants argued they achieved primary success because the by-law was declared illegal, while the municipality and the added party sought costs or alternatively no costs due to divided success.

The court held that success on the application was clearly divided because the by-law was found illegal yet remained in force.

Exercising its discretion under the Rules of Civil Procedure, the court ordered that each party bear its own costs.

Property owners applied under s. 273(1) of the Municipal Act, 2001 to quash a municipal by-law authorizing an agreement allowing the Bruce Trail Conservancy to use an unopened road allowance for a footpath adjacent to the applicant’s property.

The court found the municipality failed to comply with its own notice by-law because the notice was posted on the municipal website for only one week rather than the required two weeks and the newspaper notice was improperly placed and incomplete.

The court therefore concluded the by-law was illegal because it was not passed in accordance with the municipality’s notice requirements.

However, exercising its discretion under s. 273(1), the court declined to quash the by-law due to the absence of evidence regarding consequences of the illegality or impact on the applicant.

The application was dismissed.

Following resolution of a motion by consent permitting the applicant to file a fresh notice of application in litigation arising from termination of employment by a municipal employer, the court addressed competing claims for costs.

The applicant sought $5,000 in costs while the respondent sought $10,000.

The court noted that success on the motion was divided and that the proposed fresh notice of application had originally sought relief well beyond the narrow issue capable of adjudication under the Municipal Act.

Considering the discretionary nature of costs under s. 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure, the court concluded that fairness favoured making no costs order.