BARRIE COURT FILE

COURT FILE NO.: 11-0844

DATE: 2015-07-13

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Ashburner, Phyllis Ashburner and Thomas Ashburner

Applicants

– and –

The Corporation of the Township of Adjala-Tosorontio, Karl Korpela in his capacity as Chief Building Official for the Corporation of the Township of Adjala-Tosorontio, Karl Korpela and Tuire Pickering and Paul Pickering

Respondents

E.M. Green and B. Ogunmefun, for the Applicants

J.J. Feehely, for the Respondents, The Corporation of the Township of Adjala-Tosorontio, Karl Korpela in his capacity as Chief Building Official for the Corporation of the Township of Adjala-Tosorontio, and Karl Korpela

R.K. Brown, for the Respondents, Tuire Pickering and Paul Pickering

HEARD: BY WRITTEN SUBMISSIONS

COSTS ENDORSEMENT

QUINLAN J.:

[1] Despite objections raised by the applicants, the respondent Township issued a building permit to the respondent Tuire Pickering to build a riding arena. After a one day hearing, I declared that the decision of the Chief Building Official for the Township of Adjala-Tosorontio was made in error because the application for the building permit did not comply with all applicable law as required by the Building Code Act. The parties have provided written submissions on the issue of costs.

Positions of the Parties

Position of the Applicant

[2] The applicant seeks costs in the amount of $60,572.91 inclusive of disbursements and HST. Although the Bill of Costs does not set out the scale, considering the hourly rates charged and the submission with respect to an Offer to Settle, I assume the amount sought is on a full indemnity basis. The applicants argue that they were completely successful, the interpretation issues were complex and the issues were important to them. Before the building permit was issued, the applicants provided a planning opinion from an experienced land use planner that supported their position on the application. Despite a resolution passed by Township council that would have had an impact on the building permit, a stop work order was not issued, forcing the applicants to commence the within application. The applicants served a reasonable Offer to Settle that would have obviated the need for the application, requiring the Ms. Pickering to enter into a Site Plan Agreement or other Development Agreement with the Township. The Township could have worked out a form of agreement which would have been enforceable and would not have offended the Planning Act. Ms. Pickering’s costs are necessarily lower in view of her limited role in responding to the application. The applicants raised their objections to the building permit in a timely manner and any delays in scheduling discoveries and the hearing of the application should not have a bearing on a costs award.

Position of the Respondent Township

[3] The respondent Township disputes the amount set out in the applicants’ Bill of Costs. It submits that the amount sought is excessive, including the rates sought for the junior lawyer and clerks, and is not proportionate to the length of the hearing on the matter. The issues were reasonably straightforward and took less than one day to argue. The Chief Building Official acted in good faith. If the Township had denied the application for the building permit, it could have been faced with an application by Ms. Pickering because the refusal would have been inconsistent with the Township’s historical interpretation of its zoning bylaw. The Offer to Settle was not a valid Rule 49 Offer in that the requirements set out therein could not be enforced under s. 49 of the Planning Act.

[4] Insofar as Ms. Pickering’s request for costs from the Township, no costs should be awarded. Ms. Pickering was an active participant in the process and the application. The Township relied on reports and findings of the environmental consultant retained by Ms. Pickering; the consultant was responsible for ensuring compliance with the Oak Ridges Moraine policies. Ms. Pickering did not assert any claim for costs against the Township in any materials filed. Any costs awarded to the applicants should be shared equally by the respondents.

Position of the Respondent Tuire Pickering

[5] The respondent Ms. Pickering argues that the costs sought are excessive considering the time expended, the relief sought and granted and the public nature of the main issue in the application. Although the issues were relatively complex, the amount sought by the applicant exceeds what a successful party could expect to recover on the principle of proportionality. Ms. Pickering relied on the Township in its issuance of the building permit and complied with all procedures and requests. The issue of the riding arena was important to her. The legal dispute was between the applicants and the Township. Ms. Pickering has been prejudiced by the passage of time and may be prejudiced by the piecemeal approach taken by the applicants if the applicants seek to have the riding arena demolished. The Offer to Settle does not trigger Rule 49 costs consequences in that its terms were not in compliance with or enforceable under the Planning Act. The applicants should bear their own costs, or in the alternative, the Township should pay any award of costs to the applicants as assessed on a partial indemnity scale.

[6] Ms. Pickering is seeking her costs from the Township on a substantial indemnity basis in the amount of $25,915.60, inclusive of disbursements and HST.

The Legal Principles

[7] The award of costs is governed by s. 131 of the Courts of Justice Act, R.S.O. 1990 c. C. 43 and by Rule 57.01 of the Rules of Civil Procedure. Section 131 clothes the court with its general discretion to fix costs. Rule 57.01 provides a measure of guidance in the exercise of that discretion by enumerating certain factors that the court may consider when assessing costs.[^1]

[8] In particular, the court may consider any of the following factors:

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1); O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

[9] Ultimately, in fixing an amount for costs, the overriding principles are fairness and reasonableness.[^2]

Analysis

[10] The applicants were completely successful in obtaining the relief sought. The interpretation issues were relatively complex and the issues were important to the applicants. The applicants were reasonable in attempting to resolve the matter by providing a planning opinion before the building permit was issued. Proportionality is a difficult concept to apply in this case where declaratory relief was sought and there was no monetary award. What the parties could have expected to pay is aided by Ms. Pickering’s Bill of Costs: Ms. Pickering seeks costs against the Township of approximately $22,000, exclusive of HST and disbursements, on a substantial indemnity basis or $20,125 on a partial indemnity basis as compared to the applicants’ request for costs, exclusive of HST and disbursements, of approximately $45,500 on a full indemnity basis. The applicants’ role in the proceedings would necessarily result in the greater expenditure of fees.

[11] I am not satisfied that the Offer to Settle that included terms that could not be enforced under the Planning Act was a valid Rule 49 offer and, as such, I find it is not a relevant consideration on the issue of costs.

[12] I have reviewed the applicants’ Bill of Costs and Time Entry Detail. Generally, the court ought not to second guess the time spent by counsel. As the court held in Basedo v. University Health Network[^3]:

It is not the role of the court to second guess the time spent by counsel unless it is manifestly unreasonable in the sense that the total time spent is clearly excessive or the matter has been overly lawyered.

[13] It is important to recognize that the assessment process is ultimately not a mechanical exercise.[^4] Instead, the court must take a contextual approach applying the principles and factors enumerated above, to determine a figure that is fair and reasonable in all the circumstances.

[14] I find there was some duplication of effort by having two counsel and that the amount sought for the junior lawyer and the clerks is high. As a result, there will be a reduction from the amount sought in the amount of $7,000.

[15] I find that costs should be awarded on a partial indemnity basis. The amounts sought on that basis are what a party could reasonably expect to pay and are reasonable and fair. They are proportionate, as much as can be determined, to the one day hearing and the issues. Accordingly, costs will be ordered payable on a rate of 67% of $38,489 ($45,489 minus $7,000) in the amount of $25,787.63 plus HST of $3,352.39 and disbursements of $9,170.34 for a total award of costs of $38,310.36.

[16] In view of the reliance placed by the Township on the consultant retained by Ms. Pickering and Ms. Pickering’s active participation in both the process and the application, I am satisfied that the applicant’s costs should be borne on a joint and several basis as between the respondents. Considering these factors and the fact that Ms. Pickering did not seek costs against the Township in her motion materials, I find that it is not reasonable or fair that the Township should pay Ms. Pickering’s costs.

[17] Accordingly, the respondents shall pay to the applicants their costs in the amount of $38,310.36.

QUINLAN J.

Released: July 13, 2015

[^1]: Zandersod Company Limited v. Solmar Development Corp., 2011 ONSC 3874 at para. 11

[^2]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Moon v. Sher (2004), 2004 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.)

[^3]: [2002] O.J. No. 597 (S.C.J.)

[^4]: Gratton-Masuy Environmental Technologies Inc.(c.o.b.Ecoflow Ontario) v. Building Materials Evaluation Commission, 2003 8279 (ON SCDC) at para. 17