CITATION: Etherington v. Ignace (Township), 2016 ONSC 3433
COURT FILE NO.: CV-15-0537
DATE: 2016-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Etherington, Irene Etherington, Nick Boegel and Kishoree Boegel,
Jordan R.D. Lester, for the Applicants
Applicants
- and -
The Township of Ignace,
Jennifer Savini, for the Respondent
Respondent
HEARD: Via Written Submissions
Mr. Justice W.D. Newton
Decision On Costs
[1] The respondent Township seeks costs of this application in the amount of $14,161.93. That sum includes a claim for partial indemnity costs up to the date of an offer to settle and substantial indemnity costs thereafter plus HST and disbursements.
[2] On March 24, 2016, I dismissed the application and rejected all of the applicants’ arguments. As such, I found that the Township had no obligation to perform any maintenance on the private drive.
[3] The Township offered to settle this application by maintaining the private drive in accordance with a draft agreement provided that the applicants release the Township from liability. The Township offered to pay the applicants’ costs. The applicants did not respond to this offer.
[4] The applicants argue that Rule 49 is not triggered because the offer was not “sufficiently certain”. While certain aspects of the offer were unknown (the terms of the proposed release for example) the offer provided that the Township would conduct, at its cost, regular snowplowing and other minor maintenance (grading and spot gravel etc.). The draft agreement stipulated that should the private drive become a safety hazard to people or equipment then the Township could unilaterally cease work until the necessary repairs were made at the applicants’ expense.
[5] This offer granted to the applicants much more than I awarded. I conclude that the offer should be considered in assessing costs.
[6] The applicants also disputed some of the claims for costs with respect to prior adjournments and hours expended.
[7] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, 2002 CanLII 25577 (ON CA), [2002] O.J. No. 4495 (C.A.), at para. 4.
[8] In the circumstances, I conclude that a fair and reasonable amount that should be paid by the applicants to the Township is the sum of $12,500 including disbursements and HST.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: May 26, 2016
CITATION: Etherington v. Ignace (Township), 2016 ONSC 3433
COURT FILE NO.: CV-15-0537
DATE: 2016-05-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
John Etherington, Irene Etherington, Nick Boegel and Kishoree Boegel,
Applicants
- and -
The Township of Ignace,
Respondent
DECISION ON COSTS
Newton J.
Released: May 26, 2016
/mls