CITATION: The Corporation of the City of Brantford v. Montour, 2013 ONSC 1219
COURT FILE NO: CV-08-334
DATE: 2013/02/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE CITY OF BRANTFORD
Applicant/Moving Party
- and -
RUBY MONTOUR, FLOYD MONTOUR, CLIVE GARLOW, CHARLIE GREEN, MARY GREEN, DAVID MARTIN, HAZEL HILL, AARON DETLOR AND THE HAUDENOSAUNEE DEVELOPMENT INSTITUTE, JANE DOE, JOHN DOE AND PERSONS UNKNOWN
Respondents
COUNSEL:
Neal J. Smitheman and Tracy A. Pratt, for the Applicant
Ruby Montour and Floyd Montour, self represented;
Jessica R. Orkin and Louis Sokolov, for Aaron Detlor; Hazel Hill; The Haudenosaunee Development Institute;
William C. McDowell, Amicus;
David Feliciant for Ontario.
HEARD: October 16, 2012
BEFORE: THE HON. MR. JUSTICE ARRELL
Judgment on Costs
Introduction:
[1] The Applicant issued a statement of claim and then brought an application for an interlocutory injunction. I granted the injunction and dismissed the motion brought by the Respondents seeking to set aside two by-laws passed by the Applicant.
[2] The Applicant now seeks its costs of those hearings to which the Respondents are opposed.
Facts:
[3] There were a number of undeveloped sites in the City of Brantford in 2007 and 2008 that were being developed by various private entrepreneurs. Those sites consisted of a hotel, manufacturing facility, retail outlets and a residential subdivision.
[4] I found as a fact that those projects, given the relatively modest size of Brantford, were of significant economic importance to the community.
[5] I found as a fact that the Respondents, and various other unidentified individuals, systematically blockaded these development sites commencing in 2007. Those activities escalated into 2008 such that for all intents and purposes those projects came to a halt. Indeed, one of the larger projects left Brantford and is now engaged in litigation with the City over the expenses it alleges it has incurred due to the blockades, despite having obtained a separate interim injunction, which was not obeyed.
[6] The City of Brantford passed by-laws prohibiting blockage and disruption of work on municipal roadways at certain construction sites within the City. These locations were the subject of the work stoppages as a result of the protests by various first nations’ individuals, represented by the respondents, who claimed ownership of the land as a result of past treaties.
[7] The City then sought and obtained an interim injunction to prevent work stoppages at the specific sites. The City then sought an interlocutory injunction. The respondents sought a dismissal of the application and a declaration that the by-laws were invalid and should be quashed.
[8] The hearing before me for the interlocutory injunction was vigorously defended by the Respondents and encompassed 22 days of court time. As well this Court arranged an opportunity for further consultation between the parties with Mr. Justice Colin Campbell for 2 days prior to this application being heard and further consultation was ordered by me over a number of months with 2 agreed upon mediators during this application.
[9] There was evidence presented in this case regarding an alleged surrender of lands by the Six Nations people. In particular, lengthy evidence was filed, and submissions were made, regarding treaties, minutes, documents and letters confirming agreements in various subsequent meetings of the Six Nations and the Crown, over many decades. As well, the résumés, reports and cross-examinations of the two admitted experts, Darlene Johnston and Joan Holmes, were part of the record. The issues were significant to all parties and complex. Volumes of material were filed and lengthy cross-examinations were conducted on affidavits filed as part of this application, along with extensive factums and case briefs.
[10] Before commencing an action and seeking an injunction, the City wrote to HDI, Ruby and Floyd Montour, Detlor and Hill. Those Respondents neither responded to the letter nor changed their conduct. Once an interim injunction was granted, the enjoined conduct continued. The Applicant served an offer, however, I have concluded it does not attract cost consequences under the rules.
[11] The Applicant was completely and totally successful on all issues.
[12] The Applicant seeks costs for the litigation it commenced in May 2008 and which continued until November 2010. The Applicant states that the consultation process ordered by the court encompassed 60 hours of the Applicant counsel’s time at 15 meetings/conference calls.
[13] Section 131 of the Courts of Justice Act provides that “costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs.
[14] The default rule, however, in resolving costs issues is that the successful party is entitled to its costs.[^1] The principle that costs follow the event should only be departed from for very good reasons such as misconduct of the party, miscarriage in procedure, or oppressive or vexatious conduct of proceedings.[^2] No such considerations are applicable to the case at bar.
[15] The Respondents submit that they are public interest litigants and no costs should therefore be awarded against them. It is undoubtedly the case that litigants who honestly and properly bring an issue of public importance before the Court have on occasion been relieved of the ordinary cost consequences of losing. The question is always one involving the exercise of the Court’s discretion.[^3]
[16] It is crucial that in the case at bar the court was expressly asked not to determine the fundamental question of whether title had been ceded by Six Nations or Haudenosaunee. In my view that detracts from the argument that this was public interest litigation very significantly.
[17] For the unsuccessful parties to be considered public interest litigants, they must demonstrate that their motive in participating in these proceedings was to vindicate some interest of public importance. The circumstances that gave rise to this protracted litigation belie any argument that the unsuccessful parties were motivated by a desire to obtain a judicial resolution of some question of public importance. If so, they would have commenced litigation to have that public interest issue determined in this court, pursuant to the rule of law. It is apparent from the evidence in this case that the unsuccessful parties’ primary motive was to impose on private citizens the unsuccessful parties’ wishes in relation to private land in Brantford. The unsuccessful parties’ participation in these proceedings was not motivated by any desire to vindicate the public interest, but rather reflected the unsuccessful parties’ position that they had the right to impose their view of the public interest on innocent third parties.
[18] Although this case generated certain notoriety, it was not one involving litigants who brought an important issue before the court for the purpose of having the issue adjudicated. Rather the alleged issues of public importance were raised as attempts to justify, what this court ultimately found to be illegal activities. The Respondents have produced no authority which has relieved an unsuccessful party of its costs obligations in circumstances where its own unlawful conduct made the litigation necessary. I conclude, given the facts of this case, that the Respondents were not public interest litigants such that they should be insulated from a costs award on that basis.
[19] The Respondents also submit that any costs awarded in this litigation to date should be in the cause as the matter involves an interlocutory injunction. They submit that the preponderant consideration is whether the injunction will effectively end the proceedings. When the interlocutory injunction does not raise issues discrete from the underlying action and does not constitute a final determination of the parties’ rights, but rather protects the Applicant’s position pending trial, costs should be in the cause, argue the Respondents. Satscho v. Ontario (Minister of Government Services), [2008] O.J. No. 348.
[20] This is not the default rule. Rule 57.03(1) provides that unless the Court is satisfied that a different order would be more just, the Court shall fix the costs of the motion and order them to be paid within 30 days; or in an exceptional case, refer the costs of the motion for assessment under Rule 58 and order them to be paid within 30 days after assessment.[^4]
[21] The Rule applies to motions for an interlocutory injunction. On the plain wording of the Rule, the onus is on the Respondents to demonstrate that there is some compelling reason why the Rule should be departed from. The mere fact that an interlocutory injunction is involved does not prevent a judge from ordering costs to be fixed and payable forthwith under the Rule.[^5]
[22] I find that simply because this litigation involved an interlocutory injunction, without more, is not a sufficient reason to depart from Rule 57. As well, I conclude there is every likelihood that this litigation is at an end. There have been no further protests, these particular construction projects have been completed, and this litigation has not advanced from the date my judgment was released in November 2010, other than a motion seeking leave to appeal, which was denied. I therefore conclude that the Respondents have not persuaded me that there is some compelling reason why Rule 57 should be departed from.
[23] The Respondents further argue that Ontario and Amicus (Attorney General) should be responsible for a large portion of any costs awarded to the Applicant. They state they should not be responsible for additional costs the Applicant incurred as a result of the involvement of Amicus, nor for the costs the Applicant incurred in participating in the court ordered consultation process. If such costs are awarded they should be paid by Ontario to the Applicant.
[24] The participation by Amicus was significant and helpful to the court. The involvement of Ontario was insignificant in comparison to the other participants.
[25] Amicus also argues that a more modest award of costs would be appropriate given all the circumstances of this case and refers to Papaschase Indian Band#136 v. Canada (Attorney General), (2005), CNLR 200(Alta. Q.B.).
[26] Ontario argues, quite correctly in my view, that it came to this litigation very late in the process after a number of days of hearings had already been completed and according to my ruling “the degree of the Province’s participation” was to be determined at a later date. The real reason the province was added, at the request of the parties, was to facilitate the court ordered consultation, which it did.
[27] The province was never added on the basis that it might have to pay costs of litigation it had not been a part of. It called no witnesses nor made any submissions on the core issues. The province was added for a defined purpose, at the request of the parties, which it fulfilled. Indeed the Applicant is not seeking costs against Ontario or Amicus. It is significant that Ontario funded the consultation process and the expenses of the Respondents negotiating committee during that entire consultation process.
[28] I consider Ontario much like an intervenor. It was added to assist the court, and the parties, with the consultation process which it did. The ordinary rule is that an intervenor neither receives costs nor pays costs. R.B. v. Children’s Aid Society of Metropolitan Toronto 1995 115 (SCC), [1995] 1 S.C.R. 315 (SCC) para. 176. I have not been persuaded that I should depart from that usual rule and the Respondents have provided no authority in support of their argument.
[29] The Applicant sought relief against un-named and unidentified individuals who were participating in the blockades, quite appropriately. As such it was also quite appropriate to appoint Amicus to represent their interests and this was done with the consent of the parties. Amicus fulfilled the role he was appointed to fulfill. In my view there was not a great deal of extra work that was required by the Applicant as a result of the participation of Amicus that it would not already be required to do to as a result of the issues put forth by the Respondents. The only exception would be the land claims expert retained by Amicus that caused some extra work and expense by the Applicants. It should be noted, however, that the Respondents relied on and greatly benefited from this expert.
[30] I conclude that I am not persuaded that I should exercise my discretion in ordering Ontario to pay costs to the Applicant either on behalf of itself or Amicus.
[31] The Court of Appeal has consistently held that to deprive a successful party of costs is exceptional. Northwood Mortgage Ltd. V. Gensol Solutions Inc. (2005), 2005 793 (ON CA), 3 B.L.R. (4th) 322 (OCA), at para. 6; Georgian Bluffs (Township) v. Moyer, [2012] ONCA 700. There are no such exceptional circumstances with the case at bar and the Applicant will have its costs on a partial indemnity basis as requested.
[32] The Applicant has filed a bill of costs totalling just over $887,000.00 inclusive of disbursements, on a partial indemnity basis. The Respondents argue this amount both for the time spent of close to 2000 hours and the amounts charged per hour, along with over $62,000.00 in disbursements is grossly excessive. As well they argue duplication between the work for the injunction and the work for the by-laws. They also argue that costs should not be paid for the consultation process as it was not part of the litigation.
[33] I find the arguments of the Respondents somewhat persuasive. They would have been much more persuasive if they had filed their own dockets to allow the court to compare the time they spent for similar work, however, they did not and provided no explanation for failing to do so.
[34] I have concluded that there has been some duplication between the two applications; full rates for travel is not appropriate; I decline to award costs for the consultation which should have occurred in advance of the litigation, and in any event, I do not find it to be part of the applications as they were court ordered and not something the Respondents should pay for; likewise, Amicus was court ordered and the Applicant’s costs as a result should not be the responsibility of the Respondents; in oral submissions the Applicant agreed that there should be certain reductions for certain fees and disbursements totalling approximately $28,000.00; I have also concluded that the total amount of time spent and the hourly rates charged are somewhat excessive; I have also taken into account the arguments of Amicus that this is a case for modest costs and given all the facts I somewhat agree.
[35] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3rd) 291 the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”
[36] I conclude that a “fair and reasonable amount” of costs which should be payable by all of the Respondents, except Amicus and the province of Ontario, to the Applicants within 30 days, is $350,000.00 inclusive of disbursements and taxes.
ARRELL, J.
Released: February 28, 2013
COURT FILE NO.: CV-08-334
DATE: 2013/02/28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE CORPORATION OF THE CITY OF BRANTFORD
Applicant/Moving Party
- and -
RUBY MONTOUR, FLOYD MONTOUR, CLIVE GARLOW, CHARLIE GREEN, MARY GREEN, DAVID MARTIN, HAZEL HILL, AARON DETLOR AND THE HAUDENOSAUNEE DEVELOPMENT INSTITUTE, JANE DOE, JOHN DOE AND PERSONS UNKNOWN
Respondents
JUDGMENT ON COSTS
ARRELL, J.
Released: February 28, 2013
[^1]: Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 239 (ON CA), 17 OR (3d) 135 (CA); St. Jean (Litigation guardian of) v. Cheung 2009 ONCA 9
[^2]: 1318706 Ontario Ltd. v. Niagara (Municipality) (2005), 2005 16071 (ON CA), 75 OR (3d) 405 (CA) at paras. 48-52; 394 Lakeshore Oakville Holdings Inc. v. Misek 2010 ONSC 7238 at para. 14
[^3]: Re Sierra Club of Western Canada and Chief Forester (1994), 1994 6510 (BC SC), 117 D.L.R. (4th) 395 (B.C.S.C.), aff’d. 1995 1448 (BC CA), 126 D.L.R. (4th) 437 (B.C.C.A.)
[^4]: Rules of Civil Procedure. Rule 57.03(2)
[^5]: Intercontinental Forest Products S.A. v. Rugo, 2004 33353 (ON SCDC), [2004] O.J. 4190 at paras 3-5 (Div. Ct.); See also September 2008 ruling on costs by A.C.J. Cunningham in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, Shabot Obaadjiwan First Nation et al.