ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: CV-12-0310
Date: 2012-12-12

BETWEEN:

Balmoral Developments Hilda Inc. Applicant/Respondent by counter-application – and – THE CORPORATION OF THE CITY OF ORILLIA and KELLY SMITH, CHIEF BUILDING OFFICIAL Respondent/Applicant by counter-application

E. Marshall Green and E. Brohm for the applicant/respondent by counter-application

M. Miller for the respondent/applicant by counter-application

Heard: By written submissions

ENDORSEMENT ON COSTS

HEALEY J.

[1] This endorsement follows my ruling on the applications brought by both parties, released on October 24, 2012 ( Balmoral Developments Hilda Inc. v. Corporation of the City of Orillia , 2012 ONSC 6040 ). The application of Balmoral Developments Hilda Inc. (“Balmoral”) was granted in its entirety, and the application of the Corporation of the City of Orillia (the “City”) was dismissed.

[2] Balmoral seeks costs of the proceeding in the amount of $55,663.43.

[3] Taking into consideration the factors set out in Rule 57.01(1), and the written submissions of the parties, this court finds the following points to be relevant to its costs decision:

(i) The documentary evidence considered by the court was extensive. Each party filed four affidavits, and cross-examinations occurred in respect of seven of those affidavits on three separate dates. Undertakings were required by both parties;

(ii) The legal issues were relatively complex. The applications required detailed interpretation of the City’s zoning by-law and planning documents, as well as the documents related to this particular development. In addition, Building Code issues were raised by the City. Each party filed a detailed and lengthy factum and multiple authorities;

(iii) The issue was of significant importance to both parties. Balmoral was compelled to bring the application because of the City’s refusal to permit it to rent units in a multi-unit development to more than four individuals, and had respected the City’s position until a ruling could be obtained from the court. This litigation had a significant economic impact on Balmoral. The City’s officials and council likewise had public interests at stake that required adjudication. However, as referred to in the court’s ruling, the problem that arose between the parties was largely created by the ambiguous wording contained in the zoning by-law passed by the City;

(iv) Balmoral’s actions in changing its plans over time is not relevant to the consideration of costs, just as such conduct was only marginally relevant to the issues to be decided on the application;

(v) There is overlap in work done by Mr. Green and Ms. Brohm, such as both attending on examinations, but a review of their dockets shows that there have been discounts given to their client over the history of the file that more than account for any overlap, and this discount will likewise be taken into account by the court;

(vi) The bill of costs is calculated on a full indemnity rate. There is no reason, on the facts of this case, to award costs on this higher scale;

(vii) A disbursement of $3,526.13 is claimed for Balmoral’s planner. An affidavit sworn by her was filed, and cross-examinations occurred on it. While her professional consulting fees are warranted on this file, time spent on preparation of the affidavit and her cross-examination must be discounted. As stated in the endorsement, her evidence, which was put forward in the form of expert opinion evidence, was not required and could not have been relied upon in any event because Ms. Phillips was clearly too involved in supporting Balmoral’s position to carry any weight as an independent expert;

(viii) Total time spent by Mr. Green is shown as being 66.8 hours, but a review of the attached back-up dockets shows a miscalculation in that number, which should be 58.1 hours. Mr. Green was called to the bar in 1975 and therefore has 37 years’ experience; Ms. Brohm in 2010. Using 75% of their full rates as the partial indemnity rates to be applied ($318.75 and $206.25), the total legal fees are $30,296.26. From this amount, 2.9 hours must be deducted from Ms. Brohm’s time in relation to the Phillip’s affidavit and cross-examination, and 1.9 hours from Mr. Green’s time, totalling $1,203.76. This results in legal fees totalling $29,092.50.

(ix) These partial indemnity rates are reasonable, and less than the maximum rate stated by the Practice Direction established by the Costs Subcommittee of the Civil Rules Committee. Beyond that, the Rules require only that partial indemnity costs be awarded in accordance with Part I of Tariff A. Tariff A mandates that counsel fees be determined in accordance with s. 131 of the Courts of Justice Act and the factors set out in Rule 57.01(1). Wide discretion in fixing costs therefore remains with the court, bearing in mind the principles enunciated in the leading Ontario cases such as Anderson v. St. Jude Medical Inc . (2006), 2006 85158 (ON SCDC) , 264 D.L.R. (4th) 557 (Ont. Div. Ct.), Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc ., 2009 ONCA 722 , 100 O.R. (3d) 66.

(x) Total partial indemnity costs, together HST and taxable and non-taxable disbursements as set out in Balmoral’s Bill of Costs, amount to $38,799.91. This amount would be within the reasonable expectation of the City; in its own Costs Outline the City puts forward the amount of $27,039.88, before tax.

[4] For the foregoing reasons, this court orders that the City shall pay to Balmoral its costs of these applications fixed on a partial indemnity basis in the amount of $38,799.91, within 30 days.

HEALEY J.

Released: December 12, 2012