ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-417
DATE: 2012/11/21

BETWEEN:

WALTON DEVELOPMENT AND MANAGEMENT GP LTD. and RIVERBEND ASSET MANAGEMENT CORPORATION

N. Smitheman/T. Pratt, for the Plaintiffs

Plaintiffs

• and -

JASON BOWMAN, RUBY MONTOUR, FLOYD MONTOUR, TERRY SQUIRE, BILL SQUIRE, JOHN DOE AND JANE DOE

Self-represented

Defendants

The Hon. Mr. Justice Arrell

JUDGMENT ON COSTS

Introduction:

[1] The plaintiffs brought this application for an interlocutory injunction. The defendants, who are unrepresented and members of the Six Nations Reserve were opposed.

[2] The plaintiffs are in the initial stages of developing some property as a residential community within the Haldimand Tract. I found that the defendants, by attending on the property and confronting the team of archaeologists surveying the land, intimidated them and forced them off the property. As such the plaintiffs sought injunctive relief to stop the defendants from further interrupting work on the land.

[3] I granted an interim injunction and invited the parties to give me written submissions on costs, which they have done.

Analysis:

[4] The plaintiffs seek partial indemnity costs. There were two appearances in court, the first relatively short contesting a request for an adjournment by the defendants. The second comprising most of a day with wait time, involving the oral argument of just over an hour.

[5] The plaintiffs filed four affidavits, while the defendants filed two.

[6] The plaintiffs had 3 lawyers involved in this matter.

[7] The plaintiffs claim over $21,000 in partial indemnity costs.

[8] The defendants argue that I should use my discretion to order no costs as this litigation was in the public interest and these defendants are public interest litigators. They further argue that the subject matter of these proceedings were essentially title related. I disagree.

[9] The subject of title to the land was certainly put forward but only on the basis of a foregone conclusion that the land belonged to the First Nations, which I found at present not to be the case. The main issue raised by the defendants was that burial grounds of the First Nations people were on the subject property and should not be disturbed by the digging of the archaeologists.

[10] The defendants have not attempted to attend court and argue the merits of title to the land as public interest litigators. Instead they trespassed and intimidated the current owners of the land. They engaged in illegal activity and self help rather than seeking a disposition from the court on the merits of their position. They elected not to allow the rule of law to apply. I conclude they are not public interest litigants as defined in the case law.

[11] The plaintiffs are entitled to their costs on a partial indemnity basis. No plausible reason has been put to me as to why those costs are not payable now as opposed to after the issue of a permanent injunction is determined. The outcome of a permanent injunction, for obvious reasons, may not need to be litigated. The plaintiffs have been completely successful on this application and should not be required to await the outcome of further litigation before its costs are payable. Such a conclusion in this case might indeed encourage further litigation which this court hopes can be avoided.

[12] This was a straight-forward and uncomplicated application for an interim injunction where the outcome was a virtual certainty. In determining quantum the court is to consider the various factors set out in Rule 57.01 of the Rules of Civil Procedure . I have considered those factors.

[12] The court must consider proportionality when exercising its discretion. The court must also take into account the amount of costs the defendants could reasonably expect to pay should they be unsuccessful as they were.

[13] I have considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.) and find that costs to the plaintiffs on a partial indemnity basis, in the amount of $12,500.00, in all the circumstances, is fair and reasonable to both sides and within their respective expectations.

ARRELL, J.

Released: November 21, 2012

COURT FILE NO.: CV-12-417
DATE: 2012/11/21

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: WALTON DEVELOPMENT AND MANAGEMENT GP LTD. and RIVERBEND ASSET MANAGEMENT CORPORATION Plaintiffs - and - JASON BOWMAN, RUBY MONTOUR, FLOYD MONTOUR, TERRY SQUIRE, BILL SQUIRE, JOHN DOE AND JANE DOE Defendants REASONS FOR JUDGMENT ARRELL, J.

Released: November 21, 2012