Court File and Parties

Court File No.: 14764/03
Date: 2013-01-11
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Isabel Matwijow, Plaintiff

AND:

The Corporation of the Town of Pelham and The Regional Municipality of Niagara, Defendants

Before: The Honourable Justice C.A. Tucker

Counsel:
Angelo P. Fazari, Counsel for the Plaintiff

Terrence H. Hill, Counsel for the Defendants

ENDORSEMENT on costs

[1] The Town of Pelham “Pelham” seeks costs on a full indemnity basis in the amount of $50,018.87 on the basis that it was completely successful in resisting the application of Isabel Matwijow “Ms. Matwijow” and the court in making its decision referred to the actions taken by her as fraudulent. The applicant resists this level of costs and the quantum arguing in part that the actual rates charged to Pelham were less than the bill of costs would suggest that a change in solicitors increased the costs of Pelham and the unnecessary involvement of the Regional Municipality of Niagara caused to be added by Pelham.

[2] Pelham in the alterative seeks costs on a substantial indemnity scale in the amount of partial indemnity basis in the amount of $45,043.29 or in the further alternative on a partial indemnity basis in the amount of $33,114.68. The substantial indemnity costs were calculated as 90 percent of the actual rates charged to Pelham while the partial indemnity cost amount to some 60 percent of those amounts charged.

[3] The respondent is entitled to its costs as it was entirely successful. The only dispute is the quantum claimed and the scale sought. The application was for the issuance of a building permit for a lot which had been created as a result of a Planning Act scheme. In the end, I denied the permit on the basis that the actions taken in creating the lot amounted to what has been called fraud upon the Planning Act. Accordingly, I held that the actions could not be condemned by the court by the issuance of a permit.

[4] The issue was very important to the parties involved. Although the application dealt with only one lot, a number of lots had been created by the same scheme which would have allowed development of the property without compliance with the provisions of the Planning Act. The application was commenced in 2003 and for reasons unexplained was not heard until 2011. The motion took approximately a day and a half to be argued. The issue was complex in that the actions taken by the applicant had to be carefully reviewed and examined in light of the relevant and applicable real property legislation.

[5] Although I found “fraud upon the Planning Act” I did not find criminal fraud and, as such, I would not award full indemnity costs. The actions of the applicant were, however, a deliberate and calculated attempt to avoid the legislation and, as such, I find should attract costs on a substantial indemnity basis. The bill of costs on a whole given the issues involved on this basis I find should be $40,000.00 plus disbursements. This would eliminate, I find, any duplication of time given the change of solicitors but would acknowledge the need for the involvement of two lawyers on the file. The hourly rate is appropriate given the expertise of the solicitors involved. Although the Region of Niagara was made a party at the insistence of the respondent its involvement was limited and minimal and, as such, did not increase the costs to any degree. As I said, the almost ten year delay in the proceeding was not explained by the applicant. Accordingly, I find that the respondent is entitled to costs in the amount of $40,000.00 and HST and disbursements.

Tucker, J.

Date: January 11, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Isabel Matwijow

Plaintiff

– and –

The Corporation of the Town of Pelham and The Regional Municipality of Niagara

Defendants

endorsement on costs

Tucker, J.

Released: January 11, 2013