ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-721
DATE: 2014/12/10
BETWEEN:
The Corporation of the Township of South Glengarry
Applicant
– and –
Valley Garden Retirement Centre Inc.
Respondent
Jason Shelly, counsel for the Applicant
Pierre Champagne, counsel for the Respondent
HEARD: November 27, 2014
RULING ON COSTS
laliberte, J.
Introduction
[1] The Applicant municipality is seeking an order for costs in the amount of $93,098.72 against the corporate Respondent. This is in the context of an Application commenced on June 21, 2010.
[2] The issues raised in these proceedings revolve around a retirement home project. In May 2009, the Respondent had purchased a former school with a view of converting same into a senior citizens group home. A building permit application was filed on October 13, 2009.
[3] What followed was a series of orders issued by the Applicant against the Respondent pursuant to the Building Code Act, 1992, namely, order to comply, order not to cover or enclose, stop work order, order to remedy unsafe building and order to obtain an occupancy permit.
[4] It appears that the Respondent proceeded with the construction and occupancy of the premises without the issuance of the required permits. From the materials filed in these proceedings, the Respondent’s position is that it substantially complied with the orders and provided the proper architectural and engineering drawings. The Respondent’s claim is that the municipality was not acting in good faith and reasonably in refusing to issue the said permits.
[5] These issues led to the issuance of the above-noted Notice of Application on June 21, 2010. The Applicant’s claims the following:
− Removal of the residents until the issuance of an occupancy and building permit;
− The uncoverage of areas of the building to allow for inspection;
− Architectural and engineering drawings;
− Suspension of all construction or demolition of the building.
[6] There were also a number of charges under the Building Code Act, 1992 which were laid against the contractor retained by the corporation (spouse of the corporation’s sole shareholder) and dealt with in the Provincial Offences Court.
[7] Ultimately, the Applicant issued the required building permit in April 2014. What led to the issuance of the permit is contentious. There lies the critical point for the Court on the issue of costs in this matter.
[8] The Court notes that the Application is still ongoing. It has not been withdrawn, abandoned or finalized by a Court order. In fact, the only steps taken in these proceedings since Justice Lafrance-Cardinal’s interim order of October 14, 2010, have been the filing of a motion to be heard on September 27, 2013 but which was adjourned on consent and the hearing on costs heard on November 27, 2014.
Parties Positions
[9] Briefly, the Applicant’s claim to entitlement to a costs award is based on the following factors:
− It is the successful party when on looks at the orders sought in the Notice of Application and the result;
− Respondent has not acted reasonably;
− Respondent should have proceeded with an appeal to the Superior Court under section 25 of the Building Code Act, 1992, if it felt “apprised” by the orders;
− Issues raised in these proceedings are important in that the concern is the safety of elderly and vulnerable people in nursing homes;
− Taxpayers should not be required to pay for this litigation.
[10] The Respondent’s position is that each party should bear its own costs. Its position can be briefly summarized as follows:
− There is no basis for the suggestion that the Applicant is the successful party;
− The Court was never called upon to rule on the merit of the issues;
− The parties were able to resolve the issues on consent;
− The Respondent can also claim to be the successful party;
− Justice Lafrance-Cadinal’s two endorsements do not address the issue of costs so that the inference is that her intent was that there would be no costs award for the proceedings heard by her;
− Justice Leroy’s endorsements speak of “costs in the cause”; as there is no successful party, there is no basis for an award for the proceedings heard by him;
− In the alternative, the amounts claimed are not reasonable; the suggestion is that there is overlapping in terms of the Provincial Offences matter and the work performed by counsel and assistants.
The Law
[11] In deciding the issue of costs in this matter, the Court is guided by the following relevant principles:
a) The costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the Court, and the Court may determine by whom and to what extent the costs shall be paid. (Section 131(1) Courts of Justice Act).
b) In exercising its discretion to award costs, the Court may consider the following:
• Success;
• Offer to settle;
• Principle of indemnity;
• Amount of costs that an unsuccessful party could reasonably expect to pay;
• Complexity of the proceedings;
• Importance of the issues;
• Unreasonable conduct by a party. (Rule 57.01 of Civil Procedure).
c) A successful party is presumptively entitled to costs;
d) The objective is to fix an amount that is fair and reasonable for the unsuccessful party;
e) When parties reach a settlement between themselves, the Court should be very slow to make an award of costs against one of them:
− Dhillon v. Dhillon Estate 2009 58607 (ON SC), [2009] O.J. No. 4459
− Amishinaabe v. CBC [1979] 9 W.W.R. 710
− Generally, the Court will not award costs for voluntary efforts to settle:
− Naneff v. Con-Crete Holdings Ltd. [1993] No. 1756 (Ontario Court of Appeal);
− Liao v. Griffiden [2002] O.J. No. 4513
Discussion
[12] The question of entitlement to costs presents as a difficult issue in these proceedings. The legal framework to assess entitlement is premised mostly on result and conduct. As stated by Justice MacKenzie in Dhillon v. Dhillon Estate op. cit. at paragraph 10:
“The discretion of the Court under s. 131 of the Courts of Justice Act and the factors in Rule 57.01 (1) of the Rules of Civil Procedure that form the parameters for the exercise of discretion under s. 131 require factual findings relating to the reasonableness or lack of reasonableness in the conduct of each of these litigants. In the absence of such findings, it is problematic in the extreme for the Court to exercise its discretion on a rational basis in making any costs award.”
[13] So that the issue for the Court is whether the record is such that it allows the Court to exercise its discretion on a rational basis. Having considered all of the circumstances and the relevant principles, the Court is of the view that the record does not allow for a proper exercise of discretion. This conclusion is based on the following factors:
− There is no evidence on why the September 27, 2013 motion was adjourned other than counsel for the Applicant stating that the Respondent had arrived on the day of the motion with boxes of documents some of which were dated 2013;
− Compliance with the Applicant’s requests is not the only rational and logical inference flowing from the issuance of the permit in April 2014;
− The Court cannot speculate on whether the issuance of the permit is reflective of compliance and therefore supportive of success for the Applicant as oppose to the parties having compromised;
− The endorsements of both Justice Leroy and Justice Lafrance-Cardinal do not amount to findings on the merits of this Application;
− It is impossible for this Court to decide entitlement to costs of motions heard by other judges in the absence of any reasons for temporary orders;
− Justice Lafrance-Cardinal is silent on the issue of costs in her endorsements; this is indicative of an intent not to order costs;
− Justice Leroy’s endorsements reserve costs to the successful party; the Court is unable to attribute success;
− The Court notes that there has been very little judicial involvement in these proceedings; there have been four brief endorsements (June 25, 2010, July 23, 2010, July 30, 2010, October 14, 2010); the logical inference is that the parties were able to settle the issues with little judicial intervention; this will usually not attract costs as explained by the Ontario Court of Appeal in the case of Naneff v. Con-Crete Holdings Inc. op. cit.;
− The lack of judicial involvement in this matter is further evidenced by the fact that the Application is still ongoing while not being pursued;
CONCLUSION
[14] The Applicant’s motion for costs is dismissed.
Justice Ronald M. Laliberte Jr.
Released: December 10, 2014
Valley Garden Retirement Centre Inc.
2014 ONSC 7168
COURT FILE NO.: 10-721
DATE: 2014/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Township of South Glengarry
Applicant
– and –
Valley Garden Retirement Centre Inc.
Respondent
RULING ON COSTS
Justice Ronald M. Laliberte Jr.
Released: December 10, 2014