SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-12-108679-00

DATE: 20140409

RE: THE CORPORATION OF THE TOWNSHIP OF UXBRIDGE, Applicant

AND:

WILLIAM MONTGOMERY TALBOT AND GOODWOOD NURSERIES LTD., Respondents

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
C. Loopstra and D. Earthy, for the Applicant

P. Sutherland, for the Respondents

HEARD: By written submissions

COSTS ENDORSEMENT

[1] This costs endorsement follows this court’s decision with respect to an application and contempt motion commenced by the Township to enforce compliance with the Township’s Zoning and Site Alterations by-laws (The Corporation of the Township of Uxbridge v. Talbot, 2014 ONSC 1276).

[2] The Township’s motion for contempt was dismissed; its application was wholly successful with respect to one of the two properties in question, and partially successful with respect to the other. The Township overall obtained substantial relief against the respondents. Accordingly, although there was divided success in this matter, the Township shall receive some costs because of its success in the application and the considerable expenditure of public funds required to obtain the remedy required.

[3] Wide discretion and fixing costs rests 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.), Zesta Engineering Ltd. v. Cloutier (2002), 2002 45084 (ON CA), 164 O.A.C. 234 (Ont. C.A.), and Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66.

[4] As reiterated by Brown, J. in Xentel DM Inc. v. Newmarket (Town), 2010 ONSC 555, 2010 CarswellOnt 292 (S.C.J.), at para. 3:

As Armstrong J.A. has explained in Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont. C.A.) the fixing of costs involves more than merely a calculation using the hours docketed and the costs grid. As Justice Armstrong put it at para. 24 of Boucher, “it is also necessary to step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” He reiterated what the court had said in Zesta Engineering Ltd. V. Cloutier, 2002 45084 (2002), 164 O.A.C. 234 (Ont. C.A.) at para. 4:

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.

[5] Having considered the submissions of the parties and the factors outlined in Rule 57.01(1) of the Rules of Civil Procedure to guide the exercise of my discretion, I find that the following points are particularly important:

• The litigation was commenced out of necessity after attempts were made to have the respondents comply with the Township’s by-laws, and therefore the genesis of the litigation was the respondents’ intransigence in efficiently resolving the matter outside of the litigation process;

• The applicant’s overall success on main issues;

• The lack of success of the contempt motion;

• The relative complexity of the factual and legal issues;

• The years of experience of the applicant’s counsel and their applicable rates;

• The appearances related to the application, and the respondents’ co-operation in agreeing to consent orders at two appearances;

• The importance of the issues to the Municipality.

[6] Although the applicant seeks substantial indemnity costs, there was no formal Rule 49 offer to trigger the consideration of costs on such a scale. Given that the contempt motion was dismissed, the facts do not cry out for an award on the higher scale on the basis of reprehensible, scandalous or outrageous conduct by the respondents.

[7] The Township was represented by two counsel at the argument of this matter, which in the court’s view was an unnecessary duplication of fees. A review of the total hours set out in the Township’s Cost Outline shows total hours of 170.7. While the proceeding has been ongoing since March 14, 2012, there were only five attendances in total, including the half day to argue the application and motion, and no cross-examinations. The amount of hours expended appears excessive and likely involve further duplication of counsels’ time. As stated in Newcastle Recycling Ltd. v. Clarington (Municipality), 2009 37940 (S.C.J.), affm’d 2010 ONCA 314, leave to appeal to S.C.C. refused, 33772 (October 28, 2010), at para. 15, over-preparation should not be vested on the losing party.

[8] Applying the direction of the Court of Appeal in Boucher and Zesta Engineering, I conclude that a fair and reasonable amount of costs to be paid by the respondents is $30,000 inclusive, on a partial indemnity basis.

[9] Accordingly, an order shall issue requiring the respondents to pays costs to the applicant fixed in the amount of $30,000 inclusive of fees, disbursements and HST, within 30 days.

HEALEY J.

Date: April 9, 2014