SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: 12-091
Date: 20130826
RE: O’Mara, Tyas, Rutherford, Moore, Fox and Clark
Applicants
v.
The Corporation of the Municipality of Northern Bruce Peninsula
Respondent
Before: Conlan J.
Counsel:
Peter T. Fallis, for the, Applicant Tyas
Fiona M. Hamilton, for the Respondent Municipality
William C. Kort, for Bruce Trail Conservancy
ENDORSEMENT ON COSTS
Conlan J.
Introduction
[1] The Applicant, Randall Tyas (”Mr. Tyas”), is a property owner in Northern Bruce Peninsula.
[2] Mr. Tyas applied to the Court for an Order quashing By-Law 2011-23 (the “By-Law”) passed by the Respondent, The Corporation of the Municipality of Northern Bruce Peninsula (“Municipality”).
[3] Mr. Tyas argued that the By-Law is illegal and, thus, ought to be quashed under subsection 273(1) of the Municipal Act, 2001, S.O. 2001, c.25, as amended.
[4] The By-Law authorizes an agreement with Bruce Trail Conservancy (“BTC”), previously added as a party to the Application by Court Order, to utilize an unopened road allowance which abuts Mr. Tyas’ property for the purpose of establishing a foot path as part of the Bruce Trail system.
[5] Mr. Tyas’ chief complaint was that he did not receive proper notice of the By-Law.
[6] The Application was opposed by both the Municipality and BTC.
[7] The Application was heard in Owen Sound on 24 January 2013. No viva voce evidence was called by any party. My written Endorsement dated 31 January 2013 found that the By-Law is illegal as it was not passed in accordance with the Municipality’s own notice requirements. I exercised my discretion, however, not to quash the By-Law and, thus, dismissed the Application.
[8] The final paragraph of my Endorsement indicated that “my inclination is to award no costs in this matter”, although I allowed counsel to schedule a further Court attendance to deal with costs if that was necessary.
[9] Instead, counsel for each of the three parties has filed written submissions on costs along with supporting materials. I have reviewed all of the written materials filed.
The Positions of the Parties
[10] Mr. Tyas seeks costs on the basis that he was primarily successful on the Application in that the By-Law was found to be illegal. Alternatively, he requests that no costs be awarded to any party.
[11] Mr. Tyas has filed a Costs Outline which seeks $7719.22 all-inclusive of disbursements and tax ($7269.00 for fees on a partial indemnity scale) or $11,242.22 all-inclusive (10,792.00 for fees on a full indemnity scale).
[12] The Municipality submits that there ought to be no costs awarded in favour of any party because of the divided success on the Application. In the alternative, it seeks costs in its favour.
[13] The Municipality has filed a Costs Outline which seeks $18,024.01 all-inclusive of disbursements and tax ($16,674.28 for fees on a partial indemnity scale).
[14] BTC seeks costs on a partial indemnity scale in the all-inclusive amount of $11,099.82 ($8755.31 for fees).
[15] BTC has filed a Costs Outline and an Offer to Settle dated 29 October 2012. That Offer to Settle was made jointly by the Municipality and BTC. It offered to settle the Application on the basis of a dismissal. It indicated that it was open for acceptance until withdrawn by the Applicants (that obviously should have read the “Respondents”). Mr. Tyas did not accept that Offer to Settle.
Discussion
[16] Quantum of costs is largely a discretionary matter. The overriding principle is to make an award that is fair, just and reasonable in all of the circumstances including the reasonable expectations of the parties.
[17] Entitlement to costs is also discretionary, although the Rules of Civil Procedure and the jurisprudence have carved out various guidelines that usually carry the day. For example, the successful party is usually awarded some costs. Where success is found to have been divided, there is normally no costs awarded.
[18] Although Mr. Tyas argues that the joint Offer to Settle made by the Respondents is not relevant because it was withdrawn before the hearing of the Application, that is not entirely correct because the Court can consider any Offer to Settle even if the full costs consequences of Rule 49 are not imposed.
[19] I do agree with Mr. Tyas, however, that the said Offer to Settle ought to be given very little if any weight because the result was better for Mr. Tyas than what the Offer contemplated. The Offer to Settle was silent on any finding of illegality. I interpret that silence to mean that no such finding was contemplated. Rather, the Application was simply to be endorsed as having been dismissed. Put bluntly, Mr. Tyas did better than that.
[20] I find BTC’s request for costs to be without any merit, for two main reasons. First, BTC was a party added to the Application by Court Order. Although not always the case, it is fairly routine to not award costs in favour of or against an added party or intervenor. Second, it cannot be said that BTC’s submissions on the Application were, on the whole, successful. BTC argued against any finding of illegality.
[21] In assessing the submissions on behalf of Mr. Tyas and the Municipality, I have determined that my initial inclination to award no costs must prevail. This is a case of clearly divided success. The By-Law was found to be illegal but was not quashed.
[22] I have some sympathy for Mr. Tyas’ argument that the Municipality ought to face some consequences for its failure to abide by its own notice requirements for By-Laws. But a costs Order in favour of Mr. Tyas is not the just way to provide those consequences. The Municipality will have to explain to its ratepayers why it failed to follow its own rules.
Conclusion
[23] Despite the able submissions of Mr. Fallis on behalf of Mr. Tyas, I agree with the submission of the Municipality that no costs ought to be ordered in favour of any party. Each party shall bear its own costs of the Application.
(Original signed “Conlan J.”)
Conlan J.
DATE: August 26, 2013
COURT FILE NO.: 12-091
DATE: 20130826
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: O’Mara, Tyas, Rutherford, Moore, Fox and Clark
Applicants
v.
The Corporation of the Municipality of Northern Bruce Peninsula
BEFORE: Conlan J.
COUNSEL:
Peter T. Fallis, for the Applicant Tyas
Fiona M. Hamilton, for the Respondent Municipality
William C. Kort, for Bruce Trail Conservancy
ENDORSEMENT ON COSTS
Conlan J.
DATE: August 26, 2013