ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: C-383/04
Date: 2012-02-29
Between
City of Hamilton
– and –
Attorney General of Canada, Christine Stewart, David Anderson, Herb Dhaliwal, Sheila Copps, Nancy Adams, Paul Bernier, W. Bill Bien, Edwin R. De Bruyn, Steve Burgess, Mike Cadman, Paula Caldwell, Robert Connelly, Rob Dobos, Margit Doneit, John Fischer, Rosline Frith, Nicole Gagnier, Denise Gibbs, Cathy Gee, Jonathan H. Gee, Sid Gershberg, D. V. Gillman, Carole Giroux, Ian Glen, Michael Goffin, Francois Guimont, Len Good, Keith Grady, Barbara Hennessy, Michaela Huard, Wayne Hyatt, Louise Knox, Mary Komarynsky, Janice Kotash, Olivier Lalande, Deb Lauder, Patrice Leblank, Sharon Leonhard, Simon Llewellyn, Nancy Maguire, Laud Matos, Clair Michaud, John Mills, Tom Muir, Brad Parker, L. S. Parsons, Raymond Pierce, Richard Pratt, Ulana Perovic, Kim Ray, David Robinson, Michael Rayner, Guy Riverin, David Robinson, Craig Ryan, Nathalie Seguin, Michael Shaw, Ron Shimizu, Mike Shiomi, Jeff Stein, Rob Stevens, Donna Stewart, John Struger, Gerry E. Swanson, Lucie Tessier, Lisa Vitols, Wayne Wouters and Bruce Young
for the Plaintiff: David Estrin, Ross F. Earnshaw and Scott Smith
for the Defendants: Barney Brucker, Glynis Evans and Dale Yurka
HEARD: December 13, 14, 15, 16, 2010; February 1, 2011; June 6, 7, 8, 9 and 10 2011; November 28 and 29.
RULING ON COSTS
Introduction
[1] The City of Hamilton (“the City”) has sued the Attorney General of Canada and 46 additional defendants for misfeasance in public office. In a decision of the Federal Court, Justice Dawson held that the Minister of Environment had acted without jurisdiction in referring the Redhill Creek Expressway (“RHCE” or the “Expressway”) to a panel review under the Canadian Environmental Assessment Act (“CEAA” or the “Act”). The City brought a motion for orders preventing the defendants from litigating or relitigating elements of the tort of misfeasance in public office. The City relied on what it said were admissions made by the defendants. It also relied on the doctrines of issue estoppel and abuse of process. It submitted that certain findings made by Justice Dawson were res judicata. I dismissed the motion in a judgment dated December 1, 2011. The City seeks costs in the amount of $296,750.15 for counsel fees and $13,094.80 for disbursements for a total of $309,844.95.
Background
[2] A ring road around the south and east sides of Hamilton connecting Highway 403 to the Queen Elizabeth Way had been planned since the mid-1950s. It was controversial whether the east section of the road would be constructed through the Redhill Creek Valley (the “Valley”) adjacent to the east side of Hamilton or whether it would be located east of the Valley. Environmentalists were strongly opposed to the construction of the Expressway through the Valley because of the impact it would have on this natural area. In 1985, after a 99 day hearing a joint board consisting of representatives from the Ontario Municipal Board and the Ontario Environmental Assessment board in a majority 2:1 decision approved construction through the Valley. Construction of the Expressway commenced on June 26, 1990. Construction through the Valley ceased when the provincial government cancelled funding for that portion of the Expressway on December 17, 1990. Construction of the Lincoln Alexander Expressway on the south side of Hamilton, which became an integral part of the Redhill Creek Expressway, continued. The provincial government restored funding for the construction of the portion of the Expressway through the Valley in 1995. Construction was set to begin here when it was again stopped as a result of the referral of the Expressway to a panel review by the federal Minister of Environment, Christine Stewart (“Stewart”), under the CEAA on May 6, 1999. She did so at the request of the federal Minister of Fisheries and Oceans, David Anderson (“Anderson”), made by letter dated May 4, 1999.
[3] The City brought an application in Federal Court before Her Honour Justice E. Dawson to quash the decision of Minister Stewart. In a judgment dated April 24, 2001, ( Regional Municipality of Hamilton-Wentworth and the Minister of the Environment et al , 2001 FCT 381 (“Hamilton Wentworth” )), Justice Dawson set aside the decision of Minister Stewart. She held that the CEAA did not apply to the Expressway for three reasons – the transitional provisions in section 74 of the Act applied which stated that the Act did not apply where construction began before June 22, 1984, the City had made irrevocable decisions before January 19, 1995 when the Act took effect and there was no federal head of power to support the application of the CEAA to the Expressway. The Federal Court of Appeal upheld Justice Dawson's judgment on November 14, 2001 ( 2001 FCA 347 ).
Action by the City
[4] The City has sued the Attorney General of Canada, Ministers Anderson and Stewart and 44 of their advisors and Sheila Copps, MP from the City of Hamilton. It alleges the tort of misfeasance in public office against the defendants. Fundamental to the City's action is an allegation by the City that Anderson and Stewart, and their advisors, knew that CEAA did not apply to the Expressway well prior to Anderson's request on May 4, 1999 and Stewart's decision on May 6, 1999 to refer the Expressway to a panel review. The referral was made to appease the opponents of the construction of the Expressway through the Redhill Creek Valley rather than to protect the environment. The City alleges that the defendants acted in bad faith.
[5] The City issued a Notice of Action on April 1, 2000. It filed a Statement of Claim dated September 29, 2004. The federal government delivered a Statement of Defence dated February 2, 2006. One set of counsel represented all defendants. The federal government admitted in the Statement of Defense that at the relevant times Christine Stewart was the Minister of Environment, David Anderson was the Minister of Fisheries and Oceans, Sheila Copps was a member of Parliament from Hamilton and a senior cabinet minister, 16 of the defendants were associated with the Department of Fisheries and Oceans (DFO), 21 of the defendants were associated with Environment Canada (EC) and eight defendants were associated with the Canadian Environmental Assessment Agency (CEAAg). It admitted that all of the defendants had "varying levels of involvement" in referring the Expressway to a panel review. It also stated that the defendants accepted the results of the decision of Justice Dawson, namely, that the CEAA did not apply to the Expressway and Minister Stewart acted without jurisdiction when she attempted to refer the Expressway to a panel review under the CEAA. The Statement of Defence denied that any of the defendants knew, prior to the issuance of Justice Dawson's judgment, that the CEAA did not apply to the Expressway.
The City’s Motion
[6] The City delivered what it called a "Res Judicata Motion" dated January 16, 2009. In that motion it sought an order that the defendants were bound by the findings of Justice Dawson in Hamilton Wentworth that the CEAA did not apply to the Expressway. It also sought a declaration with regard to some defendants, which it did not name, that they were bound by findings made by Justice Dawson in Hamilton Wentworth "as to the knowledge of or reckless indifference to the illegality of applying CEAA to the Expressway and the probability of harm this would cause the City and that these defendants are estopped from relitigating these determinations in this Action". The City delivered its factum in support of this motion, dated December 21, 2009, consisting of two volumes. The first volume was 140 pages and contained 421 paragraphs. The second volume was 45 pages and contained 135 paragraphs. It cited 82 cases. With this factum, the City delivered an “Amended Res Judicata, Estoppel and Abuse of Process” motion dated December 22, 2009. In this amended motion it sought further relief against the defendants. It provided some more particulars. It relied on the doctrines of estoppel in rem and abuse of process. It sought summary judgment on liability for the tort of misfeasance against the defendants, whom the court found that the essential elements of the tort of misfeasance had already been decided by Justice Dawson. This would leave only damages to be decided at trial against these defendants. The federal government delivered a factum dated August 27, 2010. It consisted of 77 pages and 280 paragraphs. It cited 36 cases. It pointed out that the defendants in their factum made no mention of seven defendants and “scant mention” of another 17 defendants. In its response to the facts it focused on the defendants whose names were mentioned most frequently as follows: Edwin R. DeBruyn (“DeBruyn”), EC (50); Rob Dobos, EC (45); Michael Shaw, EC (39); Sheila Copps, Minister (27) and Tom Muir, EC (21).
[7] The City filed a reply factum dated November 15, 2010. It consisted of 77 pages and 280 paragraphs. It cited 36 cases. It stated that it would focus on six defendants, namely, Christine Stewart, Environment Minister; David Anderson, Fisheries Minister; Edwin R. DeBruyn, senior habitat advisor in the Department of Fisheries and Oceans; Paul Bernier, vice president of the Canadian Environmental Assessment Agency; Michael Shaw, environment assessment officer in Environment Canada and Simon Llewllyn, director of the Environmental Conservation Branch in Environment Canada. It sought summary judgment against these defendants on liability for the tort of misfeasance. If successful, this would leave only an assessment of damages against the City for trial.
[8] The defendants delivered a motion record dated November 23, 2010 containing a motion for an order striking the City’s reply factum dated November 15, 2010. They delivered a factum in support of its motion. The defendants sought the following:
an order striking the “Plaintiff’s Reply Factum for the Res Judicata , Abuse of Process and Summary Judgment Motion” dated November 15, 2010;
in the alternative, an order directing the plaintiff to file a further amended notice of motion that accords with the relief it is now seeking; adjourning the motion presently scheduled to be heard commencing December 13, 2010; and allowing the defendants to file responding materials to the plaintiff’s further amended notice of motion.
[9] The City delivered a motion record and a factum, both dated December 6, 2010, opposing the defendants’ motion. The hearing on the defendants’ motion and the City’s motion commenced on December 13, 2010. After three days of submissions on December 16th, the City acquiesced to the relief sought by the defendants in their motion. It filed a "Further Amended Res Judicata Estoppel and Abuse of ProcessMotion” dated December 16, 2010. The hearing was adjourned for a case conference on February 1, 2011.
[10] There were three schedules attached to the City’s motion dated December 16, 2010. In schedule 1, the City sought partial summary judgment based on concessions and admissions made by the defendants on essential aspects of the tort of misfeasance in public office. It sought 11 orders in this schedule. In schedule 2, it sought orders estopping the defendants from relitigating findings that were fundamental to Justice Dawson's decision in Hamilton Wentworth, based on the doctrines of issue estoppel, abuse of process or both. It sought 20 orders in this schedule. In schedule 3, it sought partial summary judgment based on concessions and admissions made by the defendants that are essential to the tort of misfeasance in public office. It sought 12 orders in this schedule. In total, in this motion, the City sought 43 orders on the basis of concessions and admissions made by the defendants and on findings made by Justice Dawson in Hamilton, based on the doctrines of issue estoppel and abuse of process or both.
[11] On February 1, 2011 the City announced that it would not seek the relief set out in schedule 3 of its motion dated December 16, 2010. It delivered a "Fresh As Amended Res Judicata, Estoppel and Abuse of Process Motion" dated March 4, 2011, which was similar to its motion dated December 16, 2010 except that it attached two, rather than three schedules. It also delivered a factu,m supposedly in support of this motion that was identical to its factum dated November 15, 2010, except that two sections were removed.
[12] The hearing commenced on the City's motion on Monday, June 6, 2011. On Friday, June 11, I ordered that the City deliver a further factum on its motion dated March 4, 2011 related specifically to the relief that it sought in this motion which was not to exceed 35 pages. This it did, with its factum dated October 3, 2011 titled "Plaintiff's Supplementary Factum for the Res Judicata, Estoppel and Abuse of Process Motion". It consisted of 35 pages and referred to 39 cases. The factum was actually 40 pages since it adopted at paragraphs 69 and 102 paragraphs from its previous Factums which totaled five pages. It contained some revisions to the relief that the City requested. The defendants delivered a reply factum dated November 4, 2011. It consisted of 30 pages. It cited some cases in its footnotes that they had cited previously but did not list the cases that it relied upon separately. The hearing of the City's motion was completed in two days on November 28th and 29th. The City announced in oral submissions some further revisions to the relief that it requested. The parties also filed a 6 volume compendium containing all the documents referenced in the footnotes of the factums.
[13] The written submissions of the defendants on costs dated December 22, 2011 consist of 27 pages, 90 paragraphs, four schedules and eight exhibits. They are supported by a brief of authorities consisting of four references to statutes and seven cases. They are signed by Ms. Evans. I see no hours claimed for the preparation of these extensive and detailed submissions. The written submissions of the City consist of 30 pages and 80 paragraphs. They are signed by Messrs. Estrin, Earnshaw and Smith. They are supported by a book of authorities consisting of one reference to a text and 22 cases.
Analysis
[14] The factors to be applied in fixing costs under section 1 of the Courts of Justice Act are those set out in Rule 57.01 of the Rules of Civil Procedure . In particular, the factors that are relevant to this case are the quantum, the scale of costs, the principle of indemnity, the reasonable expectations of the unsuccessful party, the importance of the issues, the complexity of the issues, the conduct of a party that tended to lengthen the proceedings and offers to settle.
(Decision continues exactly as provided through paragraph [33], concluding:)
[33] In my view, the costs sought by the defendants are modest in all the circumstances. The work of all counsel for the defendants who contributed to the presentation of the case for the defendants was excellent. Ms. Evans carried the biggest part of the load. Her written and oral work were superb and of great assistance to the court. Regardless of whether the principles set out in the judgment of Justice Swinton in Chiefs of Ontario apply, the total amount sought by the defendants is fair and reasonable. The City of Hamilton shall pay to the defendants within 30 days costs fixed in the amount of $309,844.95.
P.B. HAMBLY J.
Released: February 29, 2012
COURT FILE NO.: C-383/04
DATE: 2012-02-29
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
City of Hamilton Plaintiff
- and -
Attorney General of Canada et al Defendants
RULING ON COSTS
P.B. HAMBLY J.
Released: February 29, 2012
/lr