Court File and Parties

Court File No.: CV-12-0724
Date: 20130319
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1291264 Ontario Ltd., Applicant

AND:

The Corporation of the City of Barrie, Respondent

BEFORE: THE HON. MADAM JUSTICE M.P. EBERHARD

COUNSEL:
M. Green Counsel, for the Applicant

R. Carlson Counsel, for the Respondent

HEARD: By written submissions

ENDORSEMENT

[1] The Applicant is owner/residential developer of lands in the City of Barrie which are subject to a secondary official plan. A parcel within those lands was held for school board use.

[2] The developers of the secondary plan and the City of Barrie agreed in 2004 to a condition giving the City an opportunity to buy the land if the school board did not require it. The City of Barrie offered to waive the right upon condition.

[3] The Applicant sought a declaration that the condition is void, or give the City of Barrie 30 days to exercise its option to purchase at fair market value.

[4] I found the condition unsupported but rather than just declare that the condition is removed and the waiver stands, I imposed a reasonable time within which the City must give notice that they will exercise or waive their option on the land.

[5] I invited written costs submissions which I have received and reviewed.

[6] The costs circumstances are rather unremarkable. There is little to dispel the notion that the successful party should have their partial indemnity costs which the Applicant claims at $16,612.83.

[7] Since there is little to argue on legal principle, the Respondent concentrates on mathematics pointing out that the “partial” rates claimed are a high percentage of the actual fees charged. The Respondent proposes a 50% rate would be more appropriate.

[8] There is no tariff or convention as to the percentage. The motion judge must consider the Rule 57 criteria and proportionality. I am not assessing costs. I am fixing them, so precision is not expected in the examination of steps taken.

[9] This was an important issue for the Applicant and not surprisingly it was meticulously addressed by senior counsel. The issues were not so much complex as unique but that required a broad context to eliminate omission in finding relevant precedent. I see no excess in the presentation. There is an inherent element of duplication with several lawyers and staff working on the issues. There is an imprecise but generous percentage in proposing a “partial” indemnity figure.

[10] Costs are fixed in favour of the Applicant at $14,500 all in.

EBERHARD. J.

Date: March 19, 2013