ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-512530

DATE: 20150917

BETWEEN:

JUDITH ANN MacDONALD

Applicant

– and –

ROBERT FORD and DOUGLAS FORD Jr.

Respondents

Jonathan Schachter for the Applicant

Gavin Tighe for the Respondents

HEARD: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

[1] In this Application under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, brought by the Applicant, Judith Ann MacDonald, the Respondents, Robert and Douglas Ford, brought a preliminary motion with respect to its timeliness.

[2] The contraventions alleged in Ms. MacDonald’s 2014 Application occurred several years ago, but Ms. MacDonald says that the facts only came to her knowledge within the six weeks prior to her Application being issued.

[3] The Fords submitted that with respect to eight alleged contraventions of the Act, the facts of the alleged breaches occurred years before the commencement of the Application and that Ms. MacDonald knew or ought to have known about the alleged breaches more than six weeks before the commencement of her Application and, therefore, with respect to these eight alleged contraventions, the Application under the Act was statute-barred. The Fords further submitted that given Ms. MacDonald’s keen interest in municipal governance and given the information in the public domain about the Fords and about the clients of their family’s business, it followed that with due diligence and by paying attention to the information that was known to her personally and in the public domain, Ms. MacDonald had knowledge of the facts long before the six weeks prior to her bringing of the Application against the Fords and, therefore, her Application with respect to the eight alleged contraventions was untimely.

[4] For reasons reported as MacDonald v. Ford, 2015 ONSC 4783, I dismissed the Fords’ preliminary motion. In my Reasons for Decision, I alerted the parties that my inclination was to award costs in the cause.

[5] The parties did not agree about the matter of costs, and Ms. MacDonald seeks partial indemnity costs of $7,318.65, all inclusive, payable forthwith. Or, alternatively, Ms. MacDonald seeks costs of $7,318.65, all inclusive, in any event of the cause. The Fords submit that the costs should be $5,000, all inclusive, payable in the cause.

[6] I agree with Ms. MacDonald’s alternative submission that costs of $7,318.65, all inclusive, should be payable to her in any event of the cause. The quantum of costs claimed for the motion is fair and reasonable, and I see no reason to reduce the quantum to $5,000.

[7] Ms. MacDonald was the successful party on the motion, but given the seriousness of the allegations she makes against the Fords and given some uncertainty both substantively and procedurally about the operation of s. 9(1) of the Act, which was variously described as a temporal qualification or condition precedent to an application or as a conventional limitation period, given the state of the law, the bringing of the Fords’ preliminary motion was reasonable in the circumstances.

[8] When a motion is reasonably brought and reasonably resisted, costs in the cause is often a fair award because costs should not be a deterrent to litigating a motion to decide a preliminary or procedure point that needs deciding one way or the other.

[9] In my opinion, making costs payable in any event of the cause to Ms. MacDonald recognizes that she was successful on the motion and this type of award is fair in the circumstances of this case; where the merits of this vigorously prosecuted and defended Application remain to be determined.

[10] Order accordingly.

Perell, J.

Released: September 17, 2015

COURT FILE NO.: CV-14-512530

DATE: 20150917

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

JUDITH ANN MacDONALD
Applicant

– and –

ROBERT FORD and DOUGLAS FORD Jr.
Respondents

REASONS FOR DECISION – COSTS

PERELL J.

Released: September 17, 2015