ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-174
DATE: 20151210
BETWEEN:
Heiner Philipp
Raivo Uukkivi, for the Applicant
Applicant
- and -
The Chief Building Official of the Corporation of the Municipality of Grey Highlands
Michael Miller, for the Respondent
Respondent
HEARD: December 10, 2015
REASONS FOR DECISION ON COSTS
Conlan J.
I. Introduction
[1] By Notice of Application issued on October 22, 2013, Mr. Heiner Philipp (“Philipp”) applied for an Order rescinding certain Orders that had been issued by the Chief Building Official (“CBO”) for the Corporation of the Municipality of Grey Highlands (“Grey Highlands”).
[2] The Orders in question had been issued by the CBO on October 2, 2013. They related to Philipp’s property located at 773738 Highway 10, Flesherton, Ontario, specifically, two patios that had been constructed by Philipp in July 2013.
[3] The CBO had issued three Orders: a Stop Work Order, an Order to Comply and an Order to Uncover. The Stop Work Order directed that Philipp cease all construction on the property. The Order to Comply directed that Philipp obtain a building permit. The Order to Uncover alleged that Philipp had contravened the Building Code by failing to obtain a permit for the construction.
[4] On August 28, 2013, prior to the Application being issued by Philipp, a Summons had been issued to him under section 24 of the Provincial Offences Act. That Summons alleged that Philipp had, on July 23, 2013 and continuing from that date, commenced construction of a building without a permit, contrary to subsection 8(1) of the Building Code Act, 1992, S.O. 1992, c. 23. The first Court attendance was on September 23, 2013.
[5] Philipp was later charged with three further offences for allegedly removing the Orders posted by the CBO. Those three additional charges were first returnable in Provincial Offences Court on December 5, 2013.
[6] Philipp was tried in the Provincial Offences Court on all four charges (both Informations) on December 11 and 12, 2014 and January 26, 2015. Both the prosecution and the defence were represented by counsel. In lengthy Reasons for Judgment released on May 4, 2015, Justice of the Peace Radulovic found Philipp not guilty of all four counts.
[7] In a nutshell, Her Worship concluded that the original charge had not been proven because the structure that Philipp had constructed was not a building and, thus, did not require a permit. Her Worship concluded that the three subsequent offences also had not been proven because there were other reasonable explanations as to why the Orders were no longer affixed to the brick wall of Phillip’s house, besides the inference that the Defendant had deliberately removed them.
[8] The decision of the Justice of the Peace was not appealed. Grey Highlands, quite responsibly at that point, rescinded the three Orders that had been issued by the CBO.
II. The Issue to be Decided
[9] It is obvious that the Application is now moot, at least in terms of the substantial relief sought – to have the Orders issued by the CBO rescinded. Those Orders are no longer in place. There is nothing to rescind.
[10] The sole issue to be decided is costs. Philipp wants his costs on a substantial indemnity basis. He argues that the CBO and Grey Highlands acted unreasonably throughout the whole affair.
[11] Grey Highlands submits that the Application ought never to have been brought in the first place because the Provincial Offences Court proceeding was already underway (the original charge had been laid two months before). There was no point in having the same dispute litigated in two different forums.
[12] Grey Highlands submits that, at the very most, Philipp is entitled to some costs on a partial indemnity scale. I accept that submission.
III. Analysis
[13] I thank both counsel for their helpful filings and for their competent submissions delivered at Court in Owen Sound on December 10, 2015.
[14] Philipp’s Application is dismissed as being moot.
[15] Notwithstanding the dismissal of the Application, there is no question in my mind that Philipp is entitled to some costs. He was clearly successful in that the Orders issued by the CBO have been withdrawn. As the successful party, Philipp is presumed to be entitled to receive some costs. There is nothing here to displace that presumption.
[16] I hear Mr. Miller’s argument that the Application should never have been brought in the first place because of the Provincial Offences Court proceeding that had already been commenced, thus, there ought to be no costs ordered in favour of either side (or even costs awarded to Grey Highlands). That argument is not completely without merit. There was a risk of conflicting decisions as to whether a building permit was required. Issue estoppel could have been raised. On the other hand, I do not conclude that the Application was unnecessary. The Justice of the Peace had no jurisdiction to Order that the three Orders in question, or any of them, be rescinded. Although unlikely, technically, one or more of those three Orders could have survived the verdicts of not guilty.
[17] There is also, however, nothing here to warrant an award of costs on a substantial indemnity scale.
[18] I agree with Philipp that he was entirely successful in the Provincial Offences Court. I also agree that the position that he took all along was accepted by the Justice of the Peace, namely, that the structure that he had constructed was not a building. The position advanced by the CBO and Grey Highlands, through the prosecutor in the Provincial Offences Court, was soundly rejected by the Justice of the Peace.
[19] Those facts, however, do not necessarily entitle Philipp to an award of costs on a substantial indemnity scale.
[20] On the evidence before me, including the lengthy Reasons for Judgment of the Justice of the Peace, I am unable to conclude that the CBO and/or Grey Highlands acted reprehensibly or maliciously or high-handed or in bad faith or arbitrarily or otherwise as alleged by Philipp’s counsel. Evidently, they were simply wrong.
[21] Parties are free to be wrong, even stubbornly so. They are free to maintain positions that are later rejected by the Court, even soundly so.
[22] I have reviewed the jurisprudence filed by Philipp’s counsel, including but not limited to the decision of Justice O’Driscoll in the case of Zamrij v. Toronto (City), 1994 CarswellOnt 6871 (Gen. Div.). In that case, the Court found, at paragraph 5 of the decision, that the municipality had displayed a “watch me, I’ll show you” frame of mind. On the record before me, I do not make a similar finding against the CBO or Grey Highlands.
[23] Philipp will have his costs on a partial indemnity scale. It would be imprudent, in my view, to allow Philipp’s counsel to cross-examine the Respondent, in the face of the Application being clearly moot, simply to try to gather ammunition to justify an award of costs on a substantial indemnity basis. That would be, frankly, a waste of the parties’ time and money, including those of Philipp.
[24] As to quantum, that is highly discretionary. I must strive to make an award that is fair, just and reasonable in all of the circumstances, including but not limited to having regard to the prudent expectations of the parties.
[25] Philipp’s counsel’s Bill of Costs requests, on a partial indemnity scale, $31,847.50 for fees, plus HST on fees, plus disbursements in the amount of $8517.73, for a total of $44,505.40.
[26] I agree with Mr. Miller that, without criticizing the hard work, thoroughness and dedication shown by Philipp’s counsel, the Bill of Costs is somewhat excessive.
[27] For example, $7667.50 is the amount for fees, on a partial indemnity scale, devoted to the Factum filed on behalf of Philipp. The Factum deals with costs. For reasons explained below, I am not awarding anything in favour of either side for the Court attendance on December 10, 2015 and the costs submissions. Thus, the $7667.50 must be deducted from the figure of $31,847.50.
[28] Further, more than fifty hours expended on the Application materials seems rather high.
[29] As another example, the Application Record does contain clearly irrelevant materials. The Affidavit of Pauline Grist (tab 3) deals exclusively with her experience with the same CBO in a completely unrelated matter – it has absolutely no relevance to whether a building permit was required for what Philipp constructed or whether the three Orders, or any of them, ought to be rescinded.
[30] Finally, the disbursement paid to Mr. Finbow, $5296.31, seems awfully rich. Mr. Finbow is a highly experienced and qualified man. As a long-time Qualified Building Official and Certified Building Code Official, Mr. Finbow rendered an opinion that a building permit was not required for Philipp’s structure. His Affidavit, less the Exhibits attached thereto, however, was less than three pages in length (tab 6 of the Application Record).
[31] It is not appropriate for me to examine every entry in Philipp’s counsel’s Bill of Costs with a magnifying glass. I am to arrive at a quantum of costs that is fair, just and reasonable.
[32] In my view, that amount is $20,000.00 for fees (down from $31,847.50, for the reasons stated above), plus HST on that amount ($2600.00), plus $5000.00 for disbursements (down from $8517.73 to account for a reduction for what was paid to Mr. Finbow), for a total of $27,600.00.
IV. Conclusion
[33] For all of the reasons stated above, partial indemnity costs are ordered in favour of Philipp in the total all-inclusive amount of $27,600.00, payable by Grey Highlands within thirty days of December 10, 2015.
[34] Inadvertently, counsel for Philipp disclosed to me at Court on December 10 that Philipp had offered to settle the issue of costs at the substantial indemnity figure (nearly $63,000.00, all-in), while Grey Highlands offered to pay $5000.00, approximately.
[35] Although the amount that I have decided upon is much closer to the Respondent’s offer, it can safely be said that success was divided. Thus, each side shall bear its own costs with respect to the Court attendance on December 10, 2015 and the preparation therefor.
Conlan J.
Released: December 10, 2015
COURT FILE NO.: 15-174
DATE: 20151210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Heiner Philipp
Applicant
- and -
The Chief Building Official of the Corporation of the Municipality of Grey Highlands
Respondent
REASONS FOR DECISION ON COSTS
Conlan J.
Released: December 10, 2015