SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-065
DATE: 20121009

RE: SHIRLEY PERSON

v.

THE CORPORATION OF THE COUNTY OF GREY

BEFORE: CONLAN J.

COUNSEL:
Peter T. Fallis, for the Applicant
David I. Wakely, for the Respondent

ENDORSEMENT RE COSTS

[ 1 ] The Applicant, Ms. Person, brought a motion to, among other relief sought, file a Fresh Notice of Application. The subject matter of this litigation is the termination of the Applicant’s employment with the Respondent, the County of Grey (“County”).

[ 2 ] During the course of oral submissions on the motion by counsel for the Applicant at Court in Owen Sound on October 4, 2012, I proposed a resolution of the motion. After some discussions, the motion was resolved by way of a consent Order.

[ 3 ] Ms. Person seeks costs of the motion in the amount of $5,000.00, payable forthwith by the County.

[ 4 ] The County seeks costs of the motion in the amount of $10,000.00, payable forthwith by Ms. Person or counsel for Ms. Person.

[ 5 ] Neither party filed a Bill of Costs, Costs Outline or Offer to Settle.

[ 6 ] The Court reserved on the issue of costs.

[ 7 ] I have considered the submissions of counsel, including the jurisprudence referred to, and the relevant statutory provisions including section 131 of the Courts of Justice Act and Rules 57.01 and 57.03 of the Rules of Civil Procedure .

[ 8 ] Costs are a discretionary matter. If costs are ordered payable, the paramount principle is to award something that is fair and reasonable in all of the circumstances.

[ 9 ] Success on the motion was divided. Although an Order was made, on consent, permitting Ms. Person to file a Fresh Notice of Application, that is only one of several claims for relief that were advanced in the Applicant’s Notice of motion. Further, the Order requires that the Fresh Notice of Application shall be limited to only a fraction of what was contained in the proposed Fresh Notice of Application filed by Ms. Person along with the Applicant’s motion materials.

[ 10 ] It was entirely reasonable for the County to contest this motion. The proposed Fresh Notice of Application prayed for relief substantially beyond that which Mr. Fallis conceded in oral submissions was the critical issue capable of being adjudicated in a meaningful way through an Application, namely, whether the County’s termination of Ms. Person’s employment was in contravention of section 275 of the Municipal Act (Ontario). Further, although perhaps relevant to Affidavit materials filed previously by the Respondent(s) with regard to the original Application, much of the Affidavit evidence contained in the Fresh Application Record is clearly irrelevant to that critical issue.

[ 11 ] It is, therefore, tempting to award costs against Ms. Person, taking into account specifically the factors outlined at paragraphs (e), (f) and/or (g) of Rule 57.01.

[ 12 ] In the end, however, I have decided to resist that temptation. Mr. Fallis and his client were responsive to the Court’s proposed resolution and took a more reasonable approach in relatively short order during the course of argument at Court on October 4, 2012. The Applicant is already facing a costs award ordered by Lemon J. at an earlier date. Ms. Person was partially successful on the motion. And, like Justice Lemon was, I am concerned that a costs award against Ms. Person may prohibit the Applicant from having her day in Court against the County.

[ 13 ] In light of the above, and having concluded that the Applicant’s request for costs has no merit, the Court exercises its discretion to make no order as to costs regarding this motion.

Conlan J.

DATE: October 9, 2012

COURT FILE NO.: 11-065
DATE: 20121009

SUPERIOR COURT OF JUSTICE - ONTARIO RE: SHIRLEY PERSON v. THE CORPORATION OF THE COUNTY OF GREY BEFORE: CONLAN J. COUNSEL: Peter T. Fallis, for the Applicant David I. Wakely, for the Respondent ENDORSEMENT RE COSTS Conlan J.

DATE: October 9, 2012