COURT FILE AND PARTIES
COURT FILE NO.: CV-11-1152
DATE: 20130724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SYLVIA WIGGINS, CATHERINE MCINNIS, DONALD MCINNIS, DIANA GARBUTT, PAUL GARBUTT, JOHN HILTON SMITH, EDNA SMITH , DEBORAH SYNNOTT, DONALD COUTTS, BRENDA LYNNE COUTTS, PETER GIGNAC, JOANNE GIGNAC, HUGH MCLACHLIN, REBECCA MCLACHLIN, JAMES HUSTON and CLAUDIA HUSTON , Plaintiffs
AND:
WPD CANADA CORPORATION and BEATTIE BROTHERS FARMS LIMITED, Defendants
COURT FILE NO.: CV-12-0344
RE: MARY SKELTON and BETTY LOUIS SCHNEIDER and MELODIE BURKETT and STANLEY BUDA and JO ANN BUDA, Plaintiffs
AND:
WPD CANADA CORPORATION and ED. BEATTIE & SON LIMITED, Defendants
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
E.K. Gillespie and E. Wallace, for the Responding Party/Plaintiffs
P.G. Duffy and I.A. Minott and J. Long, for the Moving Party/Defendants, WPD Canada Corporation
A. Faith, S. Lakhani, for the Moving Party/Defendants, Beattie Brothers Farms Limited and Ed. Beattie & Son Limited
HEARD: By written submissions
COSTS ENDORSEMENT
[1] This endorsement follows my ruling on the motions brought by the defendants wpd Canada Corporation (“wpd”), Beattie Brothers Farms Limited and Ed Beattie & Son Limited (collectively the “Beattie Companies”) released on April 22, 2013 (Wiggins v. wpd Canada Corporation, 2013 ONSC 2350). All four motions before the court requested the same relief, and each was granted in full. Summary judgment was ordered, dismissing all of the claims in each action.
[2] As a result of their success and based upon the factors set out in Rule 57.01(1) of the Rules of Civil Procedure, the defendants seek costs on a partial indemnity basis. wpd seeks the amount of $68,498.59, and the Beattie Companies the amount of $38,872.19, inclusive of disbursements and tax.
[3] The plaintiffs advance five arguments why no costs should be awarded, which are:
i) The plaintiffs raised novel issues of law;
ii) This decision affects numerous other claims before the court;
iii) This court’s findings assist future potential claims;
iv) The defendants have improperly proffered irrelevant, unsworn material; and
v) The plaintiffs have already suffered significant financial losses.
I will address each of these arguments in turn.
Novel Issues of Law
[4] This case required review of certain provisions forming the regulatory regime, but did not require interpretation of any statutory provisions. It was not a case that raised a novel point of law. The law pertaining to negligence, nuisance, trespass, Rylands v. Fletcher and quia timet injunctions is well established. The court was not required to resolve any debate over the intersection of the administrative regime and civil law in order to reach its decision. There was nothing about the application of existing principles of law that required reconsideration because of the facts of this case. This court summarized why it was dismissing all of the claims at paragraphs 34 to 36 of its Reasons wherein it stated:
The reason that each of the claims is being dismissed is that our law does not award damages without proof of an actionable wrong giving rise to liability. Even though an individual may suffer losses caused by another’s behaviour, not all loss is compensable under our common law. It is a fundamental principle in tort law that damages will only be awarded where a plaintiff is able to show that there has been tortious behaviour – in this case, grounded in negligence, nuisance, trespass, or strict liability – for which compensation should be given to the persons injuriously affected. Even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exists today the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution in property values to any tortious conduct.
Similarly, the plaintiffs are unable to prove, currently, that the Fairview Wind Project will be built. The plaintiffs are unable to prove, currently, that if the Fairview Wind Project is built, it will be built according to the specifications set out in the Draft Site Plan. They are unable to prove, currently, what conditions or restrictions may be imposed by the Director if approval is given, or by the Tribunal if the Director’s decision is appealed. They are accordingly unable to prove that either of the defendants has subjected them, or will subject them, to any of the harms for which the tort claims seek redress.
It is not in the interests of justice to require a trial where the evidentiary record reveals that the damage claims have no chance of success.
[5] I reject the plaintiffs’ argument with respect to novelty of the issues involved.
This Decision Affects other Claims
[6] The plaintiffs assert that the court’s ruling in this matter established a previously unavailable and useful precedent, and that the court’s findings in this case provide guidance that will preserve judicial resources.
[7] The most significant finding made this court was that the plaintiffs’ claims should not have been made prior to the known outcome of the regulatory process. So while that is helpful for future litigants, any unsuccessful litigant could make the same argument – their loss assists future litigants in assessing their chances of success. Such an argument, if adopted, would ignore one of the main objectives of a cost award, which is to provide compensation for the party who has had to defend against a weak or unmeritorious claim.
The Court’s Finding Assists Future Potential Claims
[8] I accept the plaintiffs’ submission that this court found that wpd owed a duty of care to neighbouring land owners, which may be of assistance to future litigants. However, that success must be weighed within the entirety of the factors set out in Rule 57.07(1), and cannot alone serve as a basis to avoid responsibility for payment of costs.
[9] That the claims were dismissed without prejudice to future claims once the regulatory process has run its course, if there is a basis for such claims at that time, is not a ground for disallowing costs. I accept the submission of the lawyers for the Beattie Companies that the decision to dismiss without prejudice is an iteration of the principle that a new claim may be brought if new facts develop to support such claim. The theme throughout the entirety of the Reasons is that the claims are premature and lacking the required evidentiary foundation. It stands to reason that when and if such evidence materializes, the claims may be reinitiated.
The Defendants have Proffered Unsworn, Irrelevant Material
[10] In this case the evidence filed by all parties is not relevant to the issue of costs, as none of it created unnecessary or wasted costs.
The Plaintiffs have Already Suffered Significant Financial Losses
[11] In the material filed by the defendants with respect to costs, there are both newspaper articles that quote the plaintiffs’ counsel and the transcript of a radio podcast in which the plaintiffs’ counsel is interviewed. Their content expresses the view that the ruling of April 22, 2013 contained a finding that the plaintiffs have suffered a diminution in property values of 22 to 50 percent or more as a result of the proposed wind turbine project. This “finding” is apparently seen by the plaintiffs as a measure of success.
[12] It is erroneous to interpret the Reasons as establishing a precedent for the degree of proof required to establish a decrease in property values in these circumstances. As set out in paragraphs 8 and 9 of the Reasons, this court was invited to, and did, engage in a legal fiction in order to cast the plaintiffs’ case in its most favorable light. That legal fiction involved accepting, without requiring the plaintiffs to prove, that they were currently experiencing a decrease in their property values as a result of the announcement of the wind project. This fiction permitted two things to occur. First, the evidence of property values was received in a manner that would not be permitted at trial. Such fact could likely only be established through expert testimony after all the requirements of the Rules had been met, and only after the court accepting that the expert witness was properly qualified to speak to the subject matter in question, and able to reliably give evidence on that subject. Second, the evidence was untested by cross-examination, or challenged by any evidence sought to be adduced by the defendants. Whether the plaintiffs would be able to prove a decrease in property values when those adversarial safeguards are in place at a trial is a matter of speculation at this point. The court wrote the following at paragraph 34 of the Reasons:
…even though in this case the court accepts that the plaintiffs have suffered, and are currently suffering, losses culminating in diminished property values, as the evidence exist today the plaintiffs are unable to prove that they have been wronged by the defendants. They have not presented any evidence linking the diminution in property values to any tortious conduct.
[13] As I understand it, that comment has been interpreted by plaintiffs’ counsel as a finding of the court. To the contrary, it is statement of the legal fiction that the court was engaged in for the purposes of the analysis of the motion. It should not be read as being of conclusive assistance to these or other plaintiffs in other cases before the courts.
[14] Further, while impecuniosity may be a factor to be considered in an award of costs, I have no evidence of the plaintiffs’ financial circumstances.
Decision
[15] Having regard to the factors in Rule 57.01(1):
• The defendants were entirely successful in obtaining the orders sought, which resulted in dismissal of two actions in which over $17 million in damages were collectively being sought against the defendants;
• Having examined the Bills of Costs of the defendants, there is nothing excessive about the time spent on this matter or the resources allocated to it. The defendants’ counsel divided the argument between them in order to minimize duplication where possible, and the same appears to be true of all work required to prepare the motions. The hourly rates are within the ranges established by the Costs Subcommittee of the Civil Rules Committee for counsels’ years of experience. No particular objection to either Bill of Costs was made by the plaintiffs;
• With respect to the amount being claimed, all counsel are from Toronto litigation firms and therefore the plaintiffs will have been aware of the fees involved when they decided to oppose the motions. The defendants have provided the court with Meaford (Municipality) v. Capital Grist, 2012 Carswell Ont. 115 (S.C.J.) a case similar to the one at bar including two summary judgment motions, wherein the court held that partial indemnity costs in the range of $214,058 and $300,000 were reasonable and proportionate, and represented what the plaintiff would reasonably have expected to pay, if unsuccessful;
• Summary judgment motions are often complex because of the volume of material required to be presented to the court in order for the moving parties to meet their evidentiary burden of proof, and for responding parties to demonstrate that there is a genuine issue for trial. This case was no exception. It took two days to argue. The plaintiffs asserted five causes of action and sought an interlocutory and permanent injunction;
• The importance of the issues to the successful defendants cannot be understated. wpd in particular sought to have the claims dismissed at an early stage because of its other wind development projects in Ontario, which have been met with similar opposition;
• By moving for summary judgment at this early stage and by accepting the plaintiffs’ evidence for the purposes of the motion, and thereby avoiding cross-examinations, the defendants saved both time and resources. Their motions proceeded efficiently before the court;
• The plaintiffs may have a political agenda, but they also have private and community interest to protect, and potentially valid reasons for doing so. They should not be punished through an award of costs for attempting to vigorously advance their concerns. But nor will the defendants be required to bear the cost of those concerns when the claims were brought without foundation or basis in law at the time that they were advanced.
[16] Wide discretion in fixing costs 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. Ultimately the end result must be what the court considers to be fair taking into account all of the above. I find that the costs sought by the defendants are fair and proportionate to the matters in issue, and within the reasonable expectation of the plaintiffs. Accordingly the defendants are granted the costs sought by them.
[17] This court orders that the plaintiffs collectively in actions number CV-11-1152 and CV-12-034 shall pay costs of these motions to wpd Canada Corporation in the amount of $68,498.59, and to the Beattie defendants in the amount $38,872.19, on a partial indemnity basis, inclusive of HST and disbursements, within 30 days.
HEALEY J.
Date: July 24, 2013