Court File and Parties

Court File No.: CV-11-436434
Date: 20120503
Superior Court of Justice - Ontario

RE: CITY OF TORONTO, Applicant

AND:

1095909 ONTARIO LIMITED, Respondent

Before: T. McEwen J.

Counsel:
R. Andrew Biggart , for the Applicant
Mark Flowers , for the Respondent

Heard: December 12, 2011

Costs Endorsement

[ 1 ] The Respondent 1095909 Ontario Limited (the “Respondent”) seeks its costs of the application given my decision dismissing the City of Toronto’s (the “City”) application.

[ 2 ] The City submits that no costs should be awarded to either party since there was no ruling on the merits of the application but rather it was dismissed on the basis that the Ontario Municipal Board (the “OMB”) is the more appropriate forum.

[ 3 ] In my view, the Respondent is entitled to its partial indemnity costs. Even though there was no finding on the merits, the City made a decision to proceed with the application in the Superior Court of Ontario and that application was dismissed.

[ 4 ] The City further submits that since it will be pursuing its application in the form of a motion to the OMB, the majority of the work completed and preparing for the application will be of use to the Respondent again. The City therefore argues that this fact should substantially reduce the amount of costs awarded if any. I do not agree with this submission. In my view, this Court has the obligation to deal with the costs with respect to the matter that was before it and there is no certainty that the City will pursue a motion at the OMB. Accordingly, I should deal with the issue of costs at this juncture and if there is some duplication, this can be taken into account if and when the matter proceeds before the OMB.

[ 5 ] With respect to the issue of fees, having considered the nature of the application, I am of the view that the amount sought by the Respondent is somewhat excessive and there was some duplication.

[ 6 ] Concerning the application itself, I would allow the Respondent costs in the amount of $12,500 plus H.S.T.

[ 7 ] Concerning the supplemental submissions concerning jurisdiction, I would allow the Respondent costs in the amount of $3,000 plus H.S.T.

[ 8 ] With respect to the issue of disbursements, I would allow all of the disbursements sought except for parking. In this regard, however, in my view, it is open for the OMB to reapportion the disbursement of the consultant-planner’s fee of $5,324.75 if ultimately the City is successful before the OMB.

[ 9 ] The Respondent is therefore entitled to $15,500 plus H.S.T. for costs and $7,521.31 for disbursements. Costs are to be paid within 60 days.

T. McEwen J.

Date: May 3, 2012