Ricksen Tam

The court considered costs following the resolution of four building permit appeals brought by Rothmar Holdings Inc. against the City of Cornwall.

After the City issued permits for all properties before the hearing, the parties argued only costs.

Rothmar sought substantial indemnity costs, alleging bad faith by the City, while the City sought partial indemnity costs or no costs.

The court declined to award costs to either party, finding it inappropriate to investigate the merits, apply costs factors, or determine relative success in the absence of findings on the substantive issues.

The court also declined to award costs of a preliminary evidentiary motion.

The applicant brought a preliminary evidentiary motion to strike or exclude the expert opinion evidence of the respondents' expert, arguing the expert lacked independence and impartiality.

The applicant alleged the expert's firm had a reputational stake and a direct client relationship with the respondent municipality, and employed a former municipal building inspector whose work was reviewed in the expert's report.

The court applied the White Burgess framework and found the threshold requirement for independence and impartiality was met, as the relationship was analogous to a mere employment relationship and did not establish a realistic concern that the expert was unable or unwilling to fulfill his duty to the court.

The motion was dismissed.

EBC Inc. brought an application seeking declarations and payment from the City of Ottawa for unpaid holdback funds, a contract credit, and interest on allegedly late payments and arbitration awards related to a design-build contract for the Ottawa Art Gallery expansion and Arts Court redevelopment.

The court dismissed the claims for holdback funds, finding the application statute-barred by the Limitations Act, 2002, and that EBC failed to use the proper dispute resolution process.

The claim for the contract credit was also dismissed, as the court found the Amendment Agreement was a valid Change Order and the City's deduction was lawful.

The court granted a partial claim for interest, finding interest was payable on a Phase 1 arbitration award as per the contract, but dismissed interest claims related to settlements or invoices paid promptly after completion.