ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-0039
DATE: 2012-08-27
B E T W E E N:
GLEN TANNER AND RETA TANNER,
Terrance Green , for the Applicants
Applicants
- and -
THE MUNICIPALITY OF BROCKTON,
Tammy W. Grove-McClement , for the Respondent
Defendant
HEARD: August 27, 2012, via teleconference at Thunder Bay, Ontario
J. dep. Wright, J.
Decision On Costs
[ 1 ] The successful Respondent seeks the costs of this application on a substantial indemnity basis in the amount of $18,527.13.
[ 2 ] The applicants sued the respondent to enforce a promise to reconvey land to them After the Respondents’ action had been dismissed on a motion for summary judgment and after the appeal period had lapsed the plaintiffs in that action initiated this application, essentially for the same relief. It was denied.
[ 3 ] Under normal circumstances the Respondent would be entitled to the costs claimed in full.
[ 4 ] Under the peculiar circumstances of this case I was originally inclined to refuse payment of any costs.
[ 5 ] In my endorsement on the Application I wrote the following:
“At a Council meeting November 6 2006 the municipality passed the following resolution:
‘that the Council Of the Municipality of Brockton hereby agrees to return ownership of the lands transferred to the municipality by Quit Claim Deed 400139, registered October 20 th 2005 to the previous owners Glen and Reta Tanner’.
On November 9, 2006 the deputy clerk of the municipality instructed its solicitors to take the appropriate steps to permit the transfer.
That transfer never occurred.
The Tanners sued seeking an order compelling the municipality to transfer the land. A statement of defense was delivered. In the fullness of time the Township moved for summary judgment dismissing the action on the grounds that there was no triable issue. This was heard by the Hon. Mr. Justice Bielby who delivered judgment on the 19 October 2011.
Mr. Justice Bielby found that there were no issues of credibility. " . . . The issue is one of law: what is the legal impact of the resolution of council and does it impose upon the defendant any obligation or liability in law? Can the defendant be obligated to transfer the disputed property to the plaintiffs as result of the Resolution, dated November 6, 2006?"
He noted that counsel for the plaintiffs had argued that this was not a matter where municipal staff had reached an agreement with a third party but was a matter where council as a whole passed a Resolution.
The municipality denied that the passage of the Resolution created any legal obligation. The motions judge was cited the opinion that a municipality can only be bound to agreements authorized by by- law. He held that the plaintiffs ought to have known that until a bylaw was passed there was no enforceable agreement. Under the circumstances he dismissed the action with costs against the Tanners.
Subsequently, after the time for appeal had expired, the Tanners realized that there was indeed a by-law. By-law number 2006 – 67 is a confirmatory by-law which purports to adopt, ratify and confirm all actions and decisions of council with respect to resolutions and other actions taken between June 26, 2006 to and including November 27, 2006.
The Tanners are incensed that no mention was made of this by-law in argument before Justice Bielby in the previous litigation nor had it been included in the municipality's affidavit of documents. They take the position that this very serious breach of the rules of production and discovery justifies the court in exercising its inherent jurisdiction to remedy a miscarriage of justice and that the court ought to order to be done that which ought to have been done.”
[ 6 ] The applicants admit that at some point prior to the motion before Mr. Justice Bielby they had received the by-law in a box of documents from the municipality which ultimately got transferred from previous solicitors to the present counsel.
[ 7 ] The Respondents admit that the need for a confirmatory by-law was argued before Mr. Justice Bielby and no mention was made of the by-law in question.
[ 8 ] For the reasons contained in my endorsement I concluded that the issue of the by-law was a “red herring”. The real issue in the case was not the enforceability of the Resolution. The real issue was whether a bare promise of any kind was enforceable whether conveyed to the promisees by Resolution or by By-law.
[ 9 ] If the municipality had framed the issue in this way the Motions Judge would not have been led into a discussion about the absence of a by-law and the Applicants would not have been incensed when they realized a by-law existed.
[ 10 ] In addition to the above I was also moved by the following consideration. There was a time when a man or an institution’s word was its bond. The disposition of costs is discretionary and the court is entitled to consider not just the success of parties but also their conduct. The municipality, having given its word, was legally entitled to break that word when the inconvenience of complying become apparent but it can hardly object if its ungentlemanly conduct leads the disappointed parties to complain and that complaint costs the municipality money as a result of its handling of the complaint.
[ 11 ] The Respondent replies with a “you too” argument. The Respondent submits that the whole application was misconceived, that the issue had been judicially decided and that this Application was an abuse of the legal system. In any event the Applicant did not comply with the Rules, particularly by not filing a Factum.
[ 12 ] I am sympathetic to the actions of the Applicants who returned to the court seeking justice when they considered that justice had been denied them by the alleged non-existence of a by-law that in fact existed.
[ 13 ] But they had a duty to follow the Rules.
[ 14 ] Partial Indemnity costs in the Walkerton/Owen Sound area seem to be running about $2,500. In addition I allow $1,153.38 disbursements.
[ 15 ] Order to go directing the Applicants to pay to the Respondents as the costs of this application the sum of $3,653.38.
_______ ”original signed by”_ ___
The Hon. Mr. Justice J. deP. Wright
Released: August 27, 2012
COURT FILE NO.: CV-12-0039
DATE: 2012-08-27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: GLEN TANNER AND RETA TANNER Applicants - and – THE MUNICIPALITY OF BROCKTON Respondent DECISION ON COSTS J. deP. Wright J.
Released: August 27, 2012
/mls