Court File and Parties
Court File No.: CV-14-500741 Date: 2016-04-11 Ontario Superior Court of Justice
Between: LEANNE HUNT Plaintiff – and – CITY OF TORONTO, 4208-4214 DUNDAS STREET WEST (VI) LTD. operating as NORTHAM REALTY ADVISORS, and PATTISON OUTDOOR ADVERTISING LTD. Defendants
Counsel: Setareh Nasseri and Patricia Hill, for the Plaintiff John Olah and Monika Drobnicki, for Pattison Outdoor Advertising Ltd. Visnja Jovanovic, for 4208-4214 Dundas Street West (VI) Ltd. o/a Northam Realty Advisors Michele Brady, for the City of Toronto
Heard: April 5, 2016
E.M. Morgan J.
Endorsement
[1] The Plaintiff, Leanne Hunt, was knocked unconscious and incurred a head injury when she ran into a suspended metal platform, or ‘catwalk’, protruding from a sign pole on a grassy area adjacent to a shopping plaza parking lot. She sued the company that owned the sign (Pattison Outdoor Advertising Ltd., or “Pattison”), along with the landlord of the property on which the sign was located (4208-4214 Dundas Street West (VI) Ltd. operating as Northam Realty Advisors, or “Northam”), and the City of Toronto (the “City”) for issuing a permit for the sign.
[2] The Defendants each submit that they have no liability. Pattison says it was not negligent in designing or installing the sign, Northam says that the sign was leased and that it was not responsible as landlord or occupier of the premises, and the City says that it followed its by-law and Building Code approval process and is without fault. Although Pattison takes the lead on this, all of the Defendants appear to agree that the Plaintiff caused her own injuries by not looking where she was going. They together bring a motion for summary judgment under Rule 20 seeking to dismiss the claim.
I. The accident
[3] There is minimal disagreement between the parties regarding the facts of the accident, although they disagree entirely as to what caused it and who was at fault. That is, it is clear when and how the accident happened; it is less clear why it happened.
[4] Sometime between 12:00 midnight and 1:00 a.m. on June 23, 2013, Ms. Hunt and a friend went out for a pizza at Domino’s Pizza located at 4204 Dundas Street West. The friend took her dog with them for a walk. While the friend ordered the pizza, Ms. Hunt stepped outside the shop with the dog on a leash.
[5] Ms. Hunt and the dog headed for a narrow grassy median that separates the strip mall in which the pizzeria is located from the neighboring property, 4208 Dundas Street West. The grassy median contains an advertising billboard, which has a low hanging catwalk protruding horizontally underneath it. Ms. Hunt, who is 5’10”, collided with the catwalk and was found lying unconscious on the ground.
[6] Ms. Hunt’s recollection is that the dog bolted for a moment, and that she started running after it and almost immediately the left side of her head hit the catwalk. She concedes that she did see the billboard, which is lit at the top, and that she ran to the left of it in order to avoid the posts on which it is mounted. However, she did not see the catwalk until she was with a foot or two from it and could not stop. Counsel for Ms. Hunt describes the catwalk as unlit and inconspicuous, and protruding in a surprising way from the bottom of the sign.
[7] Counsel for Pattison submits that what this rendition of events leaves out is that Ms. Hunt was by her own admission focused on the dog and was not looking where she was going when she ran into the perfectly visible sign. He specifically points to the paragraph in Ms. Hunt’s own affidavit where she explained how the accident happened:
Momentarily after I stepped on the grass, I rotated my head to the right and downward, in order to look at Pantara [the dog] and said ‘come on baby girl’ and began running. As soon as I did this, within 1-3 seconds, my head collided with what I now know is the catwalk protruding from a billboard that was erected on the grass.
[8] Counsel for Pattison concludes from this that Ms. Hunt was looking down, not up, at the moment of her collision. Ms. Hunt recalls that although she was glancing at the dog, she had been looking ahead of her as she walked the dog, and that although she noticed the billboard sign she had never noticed the catwalk hanging underneath it until it was too late.
[9] Counsel for Pattison produced an expert report by Dr. Adam Campbell, who is a kinesiologist and expert in gait analysis and startle response. His opinion is that the sign and the catwalk were sufficiently lit to be visible at night, and that Ms. Hunt’s gaze likely was not directed along her path of travel. Counsel for Ms. Hunt produced an expert report by Dr. Don Donderi, who is a psychologist and expert on visual perception, memory and human judgment. His opinion is that the catwalk may have been visible if pointed out to a passerby, but there is a difference between visibility and conspicuity and the catwalk was inconspicuous and likely to be missed.
[10] Dr. Campbell and Dr. Donderi do not agree on much. Likewise, counsel for Pattison and counsel for Ms. Hunt are not impressed with each other’s choice of expert. Counsel for Ms. Hunt contends that Dr. Campbell is not particularly experienced, did not address the correct question of conspicuity, and has never had his expert evidence accepted by a court. Counsel for Pattison contends that Dr. Donderi is a constant witness for plaintiffs, was argumentative and unscientific in his evidence, and has lost his objectivity as an expert. They do agree on one thing, however, and that is that of all of the photographs taken of the billboard in issue, Dr. Campbell’s are the best.
[11] Dr. Campbell produced “calibrated” photographs, made to mirror the actual perceptions of the human eye and adjusted to the precise time of night and lighting at the time of the accident. The most useful of these are taken from the same direction that Ms. Hunt approached the billboard from while walking the dog. A picture may or may not be better than the now rarely used procedure of taking a view, but a picture is still worth a thousand words: compare Myers v Peel Board of Education, 1977 CarswellOnt 2711, at para 170 and Chen v Toronto Transit Commission, 2014 ONSC 4092, at para 11. Accordingly, Dr. Campbell’s best photo should pretty much say it all:
[12] In my view, the picture does not answer the question of liability in this case.
[13] Counsel for Pattison says that there is no doubt that the catwalk is visible protruding out to the left of the sign. He submits that the lighting is adequate and that anyone looking straight ahead would have been able to see it and avoid it by walking around it.
[14] Counsel for Ms. Hunt says that the catwalk is only visible but not noticeable as it blends into the background and forms a bit of an optical illusion. She submits that the catwalk can only be noticed if examined carefully, and that a pedestrian walking by at night does not have the kind of perception of it that a person studying a photograph has.
II. The sign company
[15] The sign part of Pattison’s billboard is 10 feet high by 20 feet wide. It has light at the top, which radiates downward. The catwalk, as can be seen in Dr. Campbell’s photograph, hangs in front and underneath the sign and extends horizontally for the length of the sign. It has no light on or near it. As counsel for Ms. Hunt suggests, the impression one gets in looking at the structure is that the billboard sign is supposed to attract the attention of the viewer, while the catwalk, which presumably is to aid access for maintenance, is intentionally discreet and is not meant to catch the viewer’s eye.
[16] The claim against Pattison is in negligence. Ms. Hunt says that her injuries were caused by the fact that the catwalk contained no warning sign or conspicuous colour or shape, and it was too low. She alleges that at nighttime the shape of the catwalk blends into the background, and cannot be readily distinguished and avoided by a person walking near the billboard. She also points out that at 5’10” she is a relatively tall woman, but is not so tall that the owner of the sign could not foresee a pedestrian of that height walking by.
[17] The evidence is clear that Pattison owns, designed, installed, and maintains the sign. It retained the engineers that prepared the structural plans for the billboard to be submitted to the City of Toronto for a permit. It has the sole right of access for repair, maintenance, and other purposes, and it is Pattison’s employees and agents who use the catwalk to reach the sign. One can presume that the height of the billboard is deliberate in that it is designed for visibility in the parking lot and environs that it faces at 1404 Dundas Street West, and the height of the catwalk is likewise deliberate in that it is designed to facilitate maintenance and servicing of the sign and ease of access from the ground to the catwalk itself.
[18] As indicated, the issues between Ms. Hunt and Pattison have spawned a battle of experts. Both experts have come under attack.
[19] Dr. Campbell is said by Ms. Hunt’s lawyers to have given precise light readings and visibility details in a case that is not really about visibility at all. They also contend that he has opined on matters outside of his area of expertise, and that his real expertise in startle response was not brought into play in his report. They further challenge Dr. Campbell’s objectivity, arguing that he was not even willing to concede the commonplace knowledge that dogs might be attracted to grassy areas. In addition to all of that, they question his expertise at all since he is relatively new on the scene and cannot point to a single court case where his expert evidence has actually been accepted.
[20] Dr. Donderi is harshly criticized by Pattison’s lawyers, who accuse him of dressing up and disguising partisan advocacy as objective science. They state that he gave no scientific explanation for his theory of conspicuity, and that he ignored scientific method in arriving at the scene too early in the day for a nighttime inspection and failing to study the file carefully and to have been so cavalier in his approach to the case that his own notes were adorned with handwritten notations about his New Years Eve plans. They focus on the fact that he has authored a book entitled “UFO, ET and Alien Abduction: A Scientist Looks at the Evidence”, suggesting that his interests are pseudo-scientific and cannot be taken seriously. In addition to all of that, they question his expertise and point to a number of prior court cases where his expert opinions have been rejected or questioned by courts and skepticism expressed as to the usefulness of his evidence.
[21] In my view, both Dr. Campbell and Dr. Donderi are well-credentialed but the points of disagreement between them are genuine and contentious. The catwalk was not obvious, but it was visible. It is for experts to opine on the question of whether it was it inherently inconspicuous, or whether Ms. Hunt simply was not looking where she was going. That requires some underlying fact finding with which the two experts can work. The other question is, where did the true hazard lie? Did the catwalk represent an uncommon hazard in terms of its low height, shape against its background, and dark colour, or did Ms. Hunt’s running after a dog in the dark represent an uncommonly hazardous activity?
[22] Courts have previously pointed out that summary judgment is not appropriate in cases where “there are differences in the opinions of the two sets of experts, and those differences can only properly be considered after the triers of fact have made findings of fact”: Frame v Watt, 2016 ONSC 718, at para 46. Once the facts have been ascertained, “then, it is possible that the opinions of one or both sets of experts could be challenged in light of those findings of fact”: Ibid.
[23] As to whether the standard of care of a prudent billboard design was met by Pattison, that is also difficult to ascertain at this stage. While it is clear that, as Dr. Dondari said in another of his cases, Campbell v County of Bruce, 2015 ONSC 230, at para 184, “a well-designed sign may reduce injuries”, it is unclear whether that commonsense proposition applies here. It is, after all, possible that Ms. Hunt brought the misfortune on herself by looking down at the dog rather than up in the direction she was running; on the other hand, it has been held that, depending on the circumstance, “[m]ere forgetfulness or want of attention, failure to look for some source of danger that is not present to the mind of the person injured is not contributory negligence”: Kania v Heart and Crown, 2015 ONSC 7042, at para 51.
[24] In Schmor Estate v Weber, [2010] O.J. No. 837, the court considered a similar circumstance where the plaintiff hit her head on a trailer hitch overhanging the sidewalk. Given the configuration of the scene and the reaction of the plaintiff, it was concluded that the plaintiff’s view “was naturally drawn to the larger impediment namely the trailer itself”: Ibid., at para 50. Likewise, in Kania, the court examined a situation where a single step was not discernable because it was the same colour as the background, and there were no obvious clues as to its presence.
[25] These analogous cases, and the conflicting views of the experts, suggest that there is some careful fact finding to be done here. I acknowledge that the Supreme Court in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 instructed that Rule 20 and the test for summary judgment must be interpreted broadly, with a view to proportionality and access to an affordable, timely and just judicial process. The primary question is whether there is a genuine issue requiring a trial; and the threshold for that question will be met only if I am able to reach a fair and just determination on the merits.
[26] In order to make the findings of fact necessary to fairly weigh the competing views of the experts, a judge would need to hear the testimony of Ms. Hunt and the experts themselves. Proper assessment of the case would also include testimony from the engineer that designed the billboard with such a low hanging and hazardous catwalk, and the specifications and discussions between Pattison and its engineers regarding the design. The standard of care question begs for some evidence as to what they were thinking when they designed a dark metal object that suspends and protrudes at head level for anyone walking nearby.
[27] There is evidence in the record provided by the affiant for the City of Toronto that Pattison did not arrange for an inspection of the sign once it was erected, as it was supposed to do under section 10.2 of the Ontario Building Code (“OBC”), creating the suggestion that they were conscious of the design flaws that may have passed the City’s approval on paper but would be obvious on a physical site inspection. This is not a case where a court can dispose of the triable issues efficiently because one side or the other has no chance of success: Canada (Attorney General) v Lameman, 2008 SCC 14, [2008] 1 SCR 372, at para 10.
[28] The photographic evidence alone, while helpful in educating me about the site, does not get me to a position where it is possible to rule on the merits without hearing the witnesses. I know where the catwalk is located, and so when I look at Dr. Campbell’s photographs my eye is instantly drawn to it. Counsel for Ms. Hunt cleverly likened this to a person who already knows where to find Waldo in the crowd. I would need to understand the perception of Ms. Hunt and the experts in order to make a fair finding of fact. I would also need some more information from Pattison to properly understand the decision-making process that went into the design of the billboard and catwalk.
[29] In other words, a judge would need to hear virtually all of the witnesses. That, in my view, answers the question as to whether the enhanced fact finding powers under Rule 20 will put the judge in a position to make a fair and just determination at trial: Hryniak, at para 57. If a judge needs to use those enhanced powers in order to hear viva voce evidence, and in doing so determines that he needs to hear virtually every witness, the enhanced powers are not particularly efficient or useful. They are an economical and proportionate substitute for a trial if only part of the evidence need be heard through live testimony and the rest can be in affidavit and discovery form. However, once those enhanced powers are used to call every witness, there is no economy in the procedure and the parties might just as well go to trial.
[30] As between Pattison and Ms. Hunt, this is a case where, “given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination”: Hryniak, at para 51. In my view, the question of Pattison’s liability raises a genuine issue for trial that cannot be resolved on a summary judgement motion, even with the enhanced powers to hear viva voce evidence that Rule 20 now provides.
III. The City
[31] In June of 2003, Pattison submitted a permit application to the City of Toronto seeking to erect a billboard-style sign. At the time, the erection and installation of such signs were regulated by chapter 215 of the former City of Etobicoke Municipal Code, section 215-1 of which provides that a permit is required in order to erect a sign located on premises within the municipality. The sign by-law also requires that the billboard be constructed in compliance with the OBC, which in turn designates a free standing sign as a structure that requires a building permit. At the relevant time, the former City of Etobicoke had delegated the by-law and building permit function to the Toronto Building department, which conducted a joint review process for each such application and issued a combined building permit and sign permit.
[32] The OBC also required that signs the size of Pattison’s billboard be designed by an architect or a professional engineer. Pattison retained a professional engineer, Len Maile, to design the sign and oversee its construction. It was Mr. Maile’s drawings that were submitted to the City in the permit application. These included plans for the sign’s base, structure, and catwalk. Based on a review of these drawings and in reliance on the accompanying professional engineer’s stamp indicating compliance with the standards of the Association of Professional Engineers of Ontario, the City issued a permit on July 7, 2003.
[33] The City’s senior official in its Sign By-law Unit, Greg Crompton, has provided affidavit evidence on the motion which is largely uncontroverted. Mr. Crompton points out that the sign complies in all respects with the relevant by-law and OBC provisions. He indicates that in 2003 there were minimum height provisions in the OBC applicable to signs that overhang a sidewalk or pedestrian walkway, and that they require a minimum height of 2.5 meters (8.2 feet) for those overhanging structures. A similar requirement is now contained in the by-law. If the catwalk were 8.2 feet from the ground, Ms. Hunt’s head would have easily cleared it and she would have suffered no injury.
[34] Counsel for Ms. Hunt argues that the language of the OBC, which limits the minimum height provision to signs “overhanging a sidewalk or other pedestrian walkway”, leaves a broad discretion for the City officials in interpreting and applying the height requirement. Mr. Compton, in his affidavit, states that in his view the height clearance provisions only apply to signs that literally project from a building or otherwise overhand a sidewalk or pedestrian walkway properly identified as such. He indicates that the City considers a pedestrian walkway to be an area such as a sidewalk or a driveway that is actually designated for pedestrian traffic. The Pattison application did not indicate any height for the catwalk, and the City was of the view that since it is situated on a grassy median strip that is elevated and serves as a dividing island between two parking lots, it is not designated for pedestrian traffic.
[35] Dr. Donderi, on behalf of Ms. Hunt, concludes that although the grassy median strip is not a public thoroughfare or pedestrian walkway, it is an “informal walkway for dogs and their owners.” He reaches that conclusion from having seen dog droppings on the grass; moreover, a review of several images captured by Google Earth reveals a number of pedestrians crossing the grassy median as a shortcut from one parking lot to another. From this, counsel for Ms. Hunt argues that the City should not have issued a sign permit because the sign’s catwalk is too low. She contends that the City’s decision as to how to interpret “pedestrian walkway” is broadly discretionary, and that the City building officials were negligent in their assessment of the Pattison application leading them to err in their interpretation of the OBC provision. In short, it is Ms. Hunt’s position that the grassy median on which Pattison’s sign is located is effectively a pedestrian walkway because, as anyone can see who visits the location, pedestrians tend to walk there.
[36] I do not agree that the City’s decision as to what is a walkway requires expertise or is particularly discretionary. In the first place, the by-law and OBC requirements are mandatory in the sense that if a permit applicant meets all the requirements the City’s duty is to issue a permit: Alaimo v York (City) (Chief Building Official), [1995] OJ No 862, at paras 16-17 (OCJ). Moreover, the interpretation of the words “sidewalk or pedestrian walkway” in the OBC, and now also in the relevant by-law, do not give rise to a broad latitude of discretion. The task of the City is to apply the language of the statute; and while this may take some interpretation in certain contexts – Mr. Crompton gives the example that he has had to determine that a boardwalk is a “pedestrian walkway” – it means areas that are designed and designated as pedestrian walkways.
[37] It is not for City officials, purportedly interpreting the words “sidewalk or pedestrian walkway”, to include within that phrase areas such as a grassy median strip which are not pedestrian walkways but which might informally be used as such. I agree with what Ducharme J. said in 1218897 Ontario Ltd. v Toronto (City), [2005] OJ No 4607, at para 4, that, “[t]he more the C.B.O.’s decision is dependant upon factual determinations within the specific expertise of the C.B.O., the more deferential will be the standard.” Here, however, no special expertise is necessary and no discretion to which to apply deference is granted by the statute.
[38] A sidewalk, boardwalk, driveway, demarcated footpath, etc. are all “pedestrian walkways” because they are for pedestrians to walk on. A grass-covered, raised median that serves as a divider between two properties is not a “pedestrian walkway” because it is not for pedestrians to walk on. No amount of supposed expertise on the part of the City building department can change that. Pedestrians may well walk on it, and an owner or designer may be prudent to keep that in mind, but that’s not what the median is for and the City is not authorized to second-guess in that way what it sees in the submitted plans. Otherwise, no applicant would ever know what the City officials will be examining and what they will not be examining, and compliance will be a matter of guesswork.
[39] The City had no real discretion in making its decision given the way the sign was situated on Pattison’s application, and it exercised its powers as statutorily authorized by granting the application once it ensured that the billboard was certified by an engineer and otherwise conformed with the OBC and by-law requirements. The fact that it posed a hazard to people walking on the median strip was not something with which the City’s building officials were concerned, as neither the OBC nor the relevant by-law gave the City the authority to look into it. That, of course, is unfortunate, as it puts the onus on the owner of the sign and the engineer who designed it to ensure that a low catwalk is not unsafe under the circumstances, without them having the City to serve as a backstop for their decision.
[40] True policy decisions are exempt from claims, whereas the implementation of them is not: Kennedy v Waterloo, [1999] OJ No 2273. The OBC and by-laws embody governmental policies, and the City cannot be sued for a bad policy, even if it causes loss to an individual: Kamloops (City) v Nielsen, [1984] 2 SCR 2, 35. The fact that the minimum height requirements do not apply to non-pedestrian walkways like the median strip at 4208 Dundas Street West requires a change in legislated policy, not a more prudent implementation of the existing policy by City staff. It is not up to the City’s building officials to go beyond the policy, but rather it is up to the provincial legislature and the city council to change it.
[41] In my view, there is no genuine issue for trial as against the City of Toronto. The City’s officials exercised their statutory authority correctly in issuing the sign permit and the claim against it cannot succeed.
IV. The landlord
[42] Northam is the owner of the commercial property with the municipal address 4208 Dundas Street West. Pattison’s billboard is on Northam’s property pursuant to a Lease Agreement dated November 20, 2012.
[43] Under the Lease Agreement, the billboard, its structures and all ancillary equipment remained the property of Pattison. Pattison was likewise to obtain permits for the structure, maintain it, and to pay any applicable tax or other fees associated with the billboard. Northam was not responsible for designing, installing, maintaining, or for identifying or remedying any hazards relating to the billboard, its structures, or any of its ancillary equipment. That was all the responsibility of Pattison.
[44] Counsel for Ms. Hunt submits that Northam, as land owner, exercised care and control of the entire median strip and is therefore liable as an occupier of the premises. She specifically cites the fact that a Northam employee mowed the law on the grassy portion of the median as an indication of Northam’s responsibilities for the sign.
[45] Counsel relies on the Occupiers’ Liability Act, which in section 3(1) confers on an occupier of premises “a duty to take such care as in all of the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” She submits that this provision makes the landlord, Northam, liable for damage caused by the sign on its property.
[46] I disagree with this view of Northam’s role. Northam had leased the sign to Pattison. It is Pattison who is solely responsible for its installation, design, maintenance, repair, upkeep, etc. The fact that Northam is the landlord, and is responsible for the area surrounding the sign (mowing the lawn on the median strip, paving the parking lot abutting the median strip, etc.) does not make it responsible for the actual leased premises – i.e. for the sign itself. In much the same way, Northam is the landlord and has care and control of the land surrounding the building at 4208 Dundas Street West, including maintenance and upkeep of the parking lot, driveways, and entrance way to the building; however, it is not responsible for any hazards created by a tenant inside a leased shop or office. Northam is not an occupier of premises leased to and occupied by a tenant.
[47] Ms. Hunt injured her head by colliding with the sign; she did not injure her leg by stepping into a pothole on the median strip. In other words, she was injured on property where the tenant, Pattison, was in occupation, not on property where the landlord, Northam, was in occupation.
[48] This view is confirmed in the Occupiers’ Liability Act itself. Section 1 defines “occupier” as: “(a) a person who is in physical possession of premises, or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”. Northam does not fit within this definition as it is not in physical possession of the leased sign and it is not responsible for the physical upkeep or control of the sign.
[49] There is no genuine issue to be tried with respect to the claim against Northam. It cannot possibly succeed.
V. Disposition
[50] The summary judgment sought by the City of Toronto and Northam is granted. The claim as against those two Defendants is dismissed.
[51] The summary judgment sought by Pattison is dismissed. There shall be a trial of all issues as against that one Defendant.
VI. Costs
[52] Turning to costs, Ms. Hunt has been successful as against one Defendant and unsuccessful as against two Defendants. That, however, does not mean that she should pay two-thirds of the Defendants’ total costs and receive one-third of her own costs. Pattison, the one unsuccessful Defendant, was the lead moving party, submitted the majority of the evidence, carried the brunt of the argument at the hearing of the motion, and incurred by far the most costs. The City and Northam were modest participants by comparison.
[53] Counsel for the City of Toronto seeks a total of $22,344.00 in costs on a partial indemnity basis. Counsel for Northam seeks a total of $19,662.00, also on a partial indemnity basis. Pattison does not get any costs award; I note, however, that counsel for Pattison’s costs outline shows substantially higher amount of costs – more than double – than either of the other two Defendants.
[54] Counsel for Ms. Hunt seeks a total of $25,379.86 against all three Defendants, on a partial indemnity basis. It is not possible to parse this costs outline in a way which accurately distinguishes costs incurred in respect of Pattison from costs incurred in respect of the other two Defendants.
[55] Costs are discretionary under section 131 of the Courts of Justice Act. The Court of Appeal has said that “costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”: Zesta Engineering Ltd. v. Clo. In similar fashion, Rule 57 provides that the expectations of the parties with respect to the amount of a costs award is a relevant factor: City of Toronto v First Ontario Realty Corporation (2002), 59 OR (3d) 568, at 574 (SCJ). Beyond those general propositions, however, the Court of Appeal has expressed reluctance to refine the test any further: “[t]he notions of fairness and reasonableness are embedded in the common law. Judges have been applying these notions for centuries to the factual matrix of particular cases.” Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291, at para 37.
[56] Given the division of labour among the parties throughout this motion, it is fair and reasonable for Ms. Hunt to receive double the amount from Pattison as she has to pay to each of the other two Defendants.
[57] Inclusive of all fees, HST, and disbursements, Pattison shall pay costs in the total amount of $20,000 to Ms. Hunt. On the same all-inclusive basis, Ms. Hunt shall pay costs in the total amount of $10,000 to the City of Toronto and $10,000 to Northam.
Morgan J.
Released: April 11, 2016
Reasons for Judgment
Court File No.: CV-14-500741 Date: 2016-04-11 Ontario Superior Court of Justice
Between: LEANNE HUNT Plaintiff – and – CITY OF TORONTO, 4208-4214 DUNDAS STREET WEST (VI) LTD. operating as NORTHAM REALTY ADVISORS, and PATTISON OUTDOOR ADVERTISING LTD. Defendants
E.M. Morgan J.
Released: April 11, 2016