Superior Court of Justice
Citation: Drummond/North Elmsley, 2015 ONSC 1859
COURT FILE NO.: 698/14
DATE: March 25, 2015
ONTARIO
BETWEEN:
DAG MILITKY and ALLISON MILITKY
Applicant
– and –
THE CORPORATION OF THE TOWNSHIP OF DRUMMOND/NORTH ELMSLEY
Respondent
Counsel:
Michael S. Polowin, for the Applicants
Janet Bradley, for the Respondent
RULING ON COSTS
PEDLAR, J
[1] I have reviewed the written submissions on costs provided by both parties in this matter. The Respondent Township was successful in defending this application and having it dismissed. I find they are entitled to their costs.
[2] The Respondent Township is seeking $7,689.00 in costs on a partial indemnity basis. I do not consider the quantum of costs being claimed excessive, considering the importance of this issue to the Township and the amount of preparation required as well as the appearance at the hearing itself.
[3] The Applicants raised the issue of the Respondent Township introducing submissions in its factum which were not reflected in the Agreed Statement of Facts. Those submissions were purported facts which were not agreed to by the Applicants.
[4] The objection is that this lack of disclosure resulted in the Applicants being faced with evidence outside the Agreed Statement of Facts, introduced only through the factum of the Respondent Township and, therefore, creates a situation where the court may exercise its discretion by not awarding costs to the Respondent Township even though they were successful at the hearing.
[5] I have reviewed my Ruling on this application and, specifically, paragraphs 33 and 34 relating to this issue.
[6] I also note that at paragraph 9, it was part of the Agreed Statement of Facts that the Respondent did not agree with the information set out in paragraphs 2 through 7 of the Agreed Statement of Facts, but neither did it deny them, as it had little information about the former use of the subject property.
[7] In paragraph 34, I note that the Applicants took the position at the hearing that they have searched and found no private parks in residential areas in the Township. It is clear from that position taken by the Applicants that this was not an issue of which they were unaware.
[8] The Respondents raised the issue in their factum that private parks did exist in the Township which have been created by the owners of estate lot subdivisions to provide a common open space amenity for all those who reside in the subdivision.
[9] The Applicants’ statement that they have searched and found no such private parks in residential areas in the Township indicates that they, either in response to that submission by the Respondent in its factum, or as a result of earlier research, had made efforts to address that issue.
[10] Although I made it clear in my rulings that I did not feel that was a critical finding in relation to the issues before the court on this application, it would have been a relatively simple matter for the Applicants to clarify this issue prior to the hearing by addressing an inquiry to the Respondent so that the Agreed Statement of Facts could have been expanded accordingly.
[11] In my view, when a public corporation, such as the Respondent, makes a statement such as this, which is a matter of public record both as to the statement and the existence of publicly available documents to substantiate that statement, I am entitled to rely upon it. The Applicants could easily have verified the truth of that statement by making inquiries from the Respondent prior to the hearing, if it concerned them.
[12] These hearings are meant to be dealt with in a relatively summary fashion and can only function that way when the essential facts are agreed upon between the parties. The existence of disputed facts, or the necessity for findings of credibility, generally will require a trial rather than an application dealt with on facts not in dispute.
[13] In my mind, the particular findings made in paragraphs 33 and 34 should not have been in dispute and should have been agreed to by the parties in advance of the hearing. As stated in my reasons, this finding regarding the existence of private parks associated with estate lot subdivisions is not critical to my ruling, only one modest example of how the bylaw in question has been implemented in this Township.
[14] Taking all these issues into consideration, I find the Respondent is entitled to its costs payable by the Applicants in the amount claimed of $7,689.00 and order that those costs be paid by the Applicants to the Respondent forthwith.
[15] Thank you to counsel for their assistance, through their written submissions, on this issue.
The Honourable Mr. Justice K.E. Pedlar
Released: March 25, 2015
Drummond/North Elmsley, 2015 ONSC 1859
COURT FILE NO.: 698/14
DATE: March 25, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAG MILITKY and ALLISON MILITKY
Applicants
– and –
THE CORPORATION OF THE TOWNSHIP OF DRUMMOND/NORTH ELMSLEY
Respondent
RULING ON COSTS
Pedlar, J.
Released: March 25, 2015