CITATION: Municipality of Dysart v. Haliburton Forest & Wild Life Reserve Limited, 2016 ONSC 2238
COURT FILE NO.: CV-15-0506
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE MUNICIPALITY OF DYSART ET AL and DAN SAYERS, CHIEF BUILDING OFFICIAL
Applicants
– and –
HALIBURTON FOREST & WILD LIFE RESERVE LIMITED and PETER CHRISTOPH SCHLEIFENBAUM
Respondents
AND BETWEEN:
HALIBURTON FOREST & WILD LIFE RESERVE LIMITED
Applicant by Counter-Application
– and –
THE MUNICIPALITY OF DYSART ET AL and DAN SAYERS, CHIEF BUILDING OFFICIAL
Respondents by Counter-Application
Michael M. Miller, for the Applicants (Respondents by Counter-Application)
Al Burton, for the Respondents (Applicant by Counter-Application)
HEARD: By written submissions
REASONS FOR DECISION ON COSTS
DiTOMASO J.
INTRODUCTION
[1] The parties brought two applications before me. The Municipality sought a mandatory order requiring Haliburton Forest and Mr. Schleifenbaum to demolish three structures and three additions to structures which were constructed without the benefit of Building Permits.
[2] The Municipality further sought an order restraining the respondents Haliburton Forest and Mr. Schleifenbaum from occupying a structure until they had obtained a Change of Use Permit for the main museum structure and Building Permit for the addition to the museum.
[3] The respondents Haliburton Forest and Mr. Schleifenbaum brought an application seeking a mandatory order directing the applicant Municipality to issue a Building Permit for the addition to the museum which was built without a Building Permit and for a Declaration that they are not required to obtain a Building Permit for two other structures.
[4] There were three properties upon which Haliburton Forest and Mr. Schleifenbaum constructed structures and additions to structures for which no Building Permits were obtained.
[5] The issue in respect of the Logging Museum was somewhat different. It involved whether a Change of Use Permit was required before a Building Permit could be issued for the expansion of the Logging Museum.
[6] My written Reasons were released on February 5, 2016. The Municipality was wholly successful in this matter. Haliburton Forest’s application was dismissed and the relief sought by the applicant Municipality was granted.
[7] The parties agreed that costs would be determined by way of written submissions. I have reviewed those submissions in addition to a review of my Reasons for Decision.
POSITION OF THE PARTIES
Position of the Applicants The Municipality of Dysart and Dan Sayers, Chief Building Official
[8] The applicants submit that they were totally successful in respect of these applications. Accordingly, they seek partial indemnity costs which follow the event. They submit their costs are fair, reasonable and within the range of what the unsuccessful respondents should have reasonably expected to pay for costs on such applications.
[9] The applicants seek costs in the amount of $25,643.68 inclusive of fees, disbursements and HST. They submit that costs should be payable by the respondents forthwith.
Position of the Respondents Haliburton Forest & Wild Life Reserve Limited and Peter Christoph Schleifenbaum
[10] The respondents submit that the costs sought by the applicants are excessive, not proportional and not within the reasonable expectations of the losing party. A more appropriate award in respect of costs should be within the range of $10,000 to $11,500 in favour of the applicants, inclusive of disbursements and HST.
[11] The hourly rates are challenged as well as time spent. Some of the disbursements are also challenged and total disbursements should be no greater than $1,000.
[12] It is further submitted that the matter was not overly complex especially given the experience of senior counsel on behalf of the applicants. It is submitted that the applicants over-lawyered this matter and that the respondents should not be punished in costs for the staffing choices made by the applicants. It is submitted that the only lawyer’s fees which ought to be considered are those incurred by senior counsel for the applicants and even then at a reduced partial indemnity rate.
ANALYSIS
[13] There is no reason to depart from the norm in this case that costs follow the event. The applicants were entirely successful on these applications and, accordingly, are entitled to their partial indemnity costs.
[14] In determining the appropriate quantum of costs, I have noted that the applicants were wholly successful on their application for mandatory orders and a permanent injunction and were totally successful in obtaining a dismissal of the application commenced by Haliburton Forest.
[15] I also note that on behalf of the Municipality, the Municipal solicitor prepared several detailed affidavits setting out the background of this matter which involved several structures built on several parcels of land without Building Permits. There was the additional issue that dealt with the Logging Museum i.e. Change of Use Permit and Building Permit for an addition. The Reply Affidavit responded in considerable detail to the allegations set out in the Affidavit of Peter Schleifenbaum. The Municipal solicitor also prepared a thorough Factum on the legal issues raised in both applications along with a Book of Authorities.
[16] In addition to the Affidavit material, cross-examinations were conducted and transcripts were obtained and utilized at the hearing.
[17] The respondents take the position that the costs sought by the applicants are “excessive, not proportional and not within the reasonable expectations of the losing party”. I do not agree with this position.
[18] I find that the costs sought by the Municipality are fair, reasonable and proportional. For the most part, they were costs incurred by the senior counsel on the file who was very experienced and did the bulk of the work. Only minor work was conducted by other lawyers regarding which I have no difficulty as to their involvement, hourly rates and time spent.
[19] There was no “over-lawyering” on behalf of the applicants. There was no over-kill in respect of the rates or time spent by lawyers acting for the applicants.
[20] The Applications involved some complexity where there were several structures and properties in issue and where the respondents had raised issues that the Chief Building Officials had misled them. On those issues, I found against the respondents. In addition, there were five legal issues which the court had to determine. I have considered the time spent and the rates billed by the counsel for the applicants. I have no difficulty with either. I find both to be fair, reasonable and proportional.
[21] I note that the respondents’ counsel had not provided a Costs Outline and Bills of Costs so that the court can determine how much was billed by the respondents’ counsel. The respondents’ counsel had also not indicated his actual hourly rate or the partial indemnity rate he would have sought should the respondents succeeded on these Applications. The failure to submit a Costs Outline and Bill of Costs on behalf of the respondents does not comply with what was requested by the court and does not offer any assistance in respect of the “over-lawyering” issue raised by the respondents. I give no effect to this argument raised by counsel for the respondents based upon my review of fulsome Costs Submissions made on behalf of the applicants and deficient Costs Submissions made on behalf of the respondents on this point.
[22] I find that the time spent and hourly rates in this matter by the applicants’ counsel was appropriate in pursuing their Application and defending the Application commenced by the respondents.
[23] The costs sought by the applicants are fair and reasonable in all the circumstances. There were two Applications before the court. There were Affidavits, Cross-Examinations, Undertakings, Facta and Books of Authorities. I find the time spent by the applicants’ counsel was fair, reasonable and proportional and should have been well within the expectations of the respondents.
[24] As for disbursements sought, case law confirms that disbursements for faxes, photocopies and Law Society levies are appropriate on a partial indemnity bill: see Dulong v. Merrill Lynch Canada, 2006 8460 (ONSC) and Lawyers’ Professional Indemnity Co. v. Geto Investments Limited, [2002] O.J. No. 921 and Dominion Construction v. Keewatin-Patricia District School Board, 2004 22948 (ONSC).
DISPOSITION
[25] For these Reasons, the respondents jointly and severally shall pay to the applicants costs fixed in the amount of $25,643.68 inclusive of fees, disbursements and HST. The respondents shall pay to the applicants these costs on or before April 29, 2016.
DiTOMASO J.
Released: April 1, 2016