2332980 Ontario Inc. v Heggie, 2016 ONSC 4438

minicounsel

[Indexed as: 2332980 Ontario Inc. v. Toronto (City) (Acting Chief Building Official)]

Ontario Reports Ontario Superior Court of Justice, E.M. Morgan J. July 7, 2016 132 O.R. (3d) 698 | 2016 ONSC 4438

Case Summary

Planning — Building permits — Appeal — Business competitor of respondent with premises in same building having standing to appeal decision to issue building permit to respondent.

Planning — By-laws — Zoning — Zoning by-law prohibiting commercial uses which "front" on particular section of main street — Respondent's unit being in building with front door on side street and side wall which stretched along main street — Building "fronting" on main street when viewed in context of policy of by-law.

A zoning by-law provided that no commercial uses (except as specified) were permitted which "front on the west side of Victoria Park Avenue for a depth of 60 m". The respondent operated a body rub parlour in a building with a front door on a side street and a side wall which ran along the portion of Victoria Park Avenue specified in the by-law. It was issued a building permit in order to renovate its unit. The applicant operated a body rub parlour in the same building. It brought an application appealing the decision to issue the building permit.

Held, the application should be allowed.

As a business competitor of the respondent's who had received a negative response when it made an informal inquiry about the possibility of obtaining a building permit to renovate its own unit, the applicant had standing to appeal the decision.

The standard of review of the chief building officer's decision was reasonableness.

The by-law regulated uses, not doorways. The point of the zoning in question was to organize the properties along a particular stretch of Victoria Park Avenue in accordance with a limited number of commercial uses. When viewed in the context of the policy of the by-law, the parties' building "fronted" on Victoria Park Avenue.

Cases referred to

Statutes referred to

Building Code Act, 1992, S.O. 1992, c. 23, ss. 8(1) [as am.], (2) [as am.], 25 [as am.], (1) [as am.]
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 [as am.]

Rules and regulations referred to

Building Code, O. Reg. 332/12, s. 1.4.1.3(1)(f)
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01(1) (0.b)

Authorities referred to

Devine, P., "The City, the Ontario Municipal Board, and the Courts: Defining and Assigning Roles in Balancing Public and Private Interests" (2002), 6 DMPL 335
Easterbrook, F., "Text, History, and Structure in Statutory Interpretation" (1994), 17 Harv. J. L. & Pub. Pol'y. 61
Eskridge, W., Dynamic Statutory Interpretation (Cambridge, Mass.: Harvard University Press, 1994)
Eskridge, W., "Public Values in Statutory Interpretation" (1989), 137 U. Penn. L. Rev. 1007
Frug, G., "The Geography of Community" (1996), 48 Stan. L. Rev. 1047
Llewellyn, K., "Remarks On the Theory of Appellate Decision and the Rules or Canons of Construction About How Statutes are to be Construed" (1949-1950), 3 Vanderbilt L. Rev. 395
Posner, R., "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution" (1986), 37 Case Western Reserve L. Rev. 179
Raz, J., "Interpretation Without Retrieval" in: Marmor, A., ed., Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995)
Sullivan, R., "The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation", Legal Drafting (University of Ottawa)

APPLICATION appealing a decision to issue a building permit.

Counsel: John Mascarin and Laura Dean, for applicant. David Tortell, for respondent John Heggie (acting chief building official). Esmail Mehrabi, for respondent 210173 Ontario Inc.

1E.M. MORGAN J.: — Can "front" mean "side"?

2This appeal under s. 25(1) of the Building Code Act, 1992, S.O. 1992, c. 23 (the "Building Code") challenges the issuance of a building permit by the respondent, John Heggie, who is the Acting Chief Building Official (the "CBO") for the City of Toronto (the "city"). Among other things, the permit application required the CBO to interpret s. 64.34(3)(a) of North York Zoning By-law 7625 (the "by-law"), which specifically limits the uses of properties which "front on the west side of Victoria Park Ave. for a depth of 60 m".

3The building permit relates to a building on the corner of Victoria Park Avenue and Sparks Avenue, whose front door is on Sparks and whose side wall stretches along Victoria Park. The question for the CBO, and now for the court on appeal, is whether this building can be said to "front" on the street that runs along its side wall.

I. The Interpretation Controversy

4The applicant, 2332980 Ontario Inc. (the "applicant"), operates a body rub parlour out of premises located in unit 2A at 3670 Victoria Park Ave. (the "building"). The building is situated on the west side of Victoria Park Avenue at the corner of Sparks Avenue, facing south onto Sparks. Unit 2A is in the southwest corner of the Building, the furthest unit from Victoria Park Ave. The evidence is that the applicant has been operating at this location since April 2013.

5The respondent 210173 Ontario Inc. (the "respondent") operates a body rub parlour out of unit 1 in the building. Unit 1 is in the southeast corner of the building, the closest unit to Victoria Park Ave. The evidence is that the respondent moved its business from another location after renovating the unit from a ground level office suite to a 12-room body rub parlour in May 2015.

6Section 8(1) of the Building Code required the respondent to obtain a building permit for demolition and construction in order to adapt its premises in the building for its proposed use. The respondent submitted its application to the city, upon which s. 8(2) of the Building Code compels the CBO to issue a permit unless the proposed project contravenes the Building Code or "any applicable law". The by-law governing the building is within the scope of "applicable law" that the CBO is required to consider, as defined by Building Code, O. Reg. 332/12, s. 1.4.1.3(1)(f). The CBO approved the respondent's application and a building permit was issued by the city on October 22, 2015 (Permit Nos. 15 208750BLD BA, 15208750 HVA 00 MS and 15208750 PLB 00 PS) (the "permit").

7Zoning map 47 of the by-law shows the western portion of the building -- including the applicant's unit -- to be within an MO zone, which is the designation governing industrial office business parks. The building is an industrial warehouse building that in 2009 was converted to contain ten separate commercial condominium units. A body rub parlour is considered a personal service shop, which is a commercial use under s. 2.20 of the by-law and is a permitted use for unit 2A in the MO zone.

8A careful review of zoning map 47 shows a black line running through the building, separating the easterly portion closest to Victoria Park Avenue from the westerly portion. This corresponds with the former office portion of the building when it was an industrial warehouse and before it was converted to a commercial office park. The designation on the map indicates that the easterly part of the building is within a zone designated as MO(3), while, as indicated, the westerly pat is within the MO zone. The contours of the MO(3) zone, and the uses permitted therein, are set out in s. 64.34(3)(a) of the by-law, which provides:

Notwithstanding the uses permitted in a MO zone, no commercial uses except business offices, professional offices, restaurants and financial institutions and no automotive uses are permitted which front on the west side of Victoria Park Avenue for a depth of 60 m except for an existing retail use located 39.3 m from the west side of Victoria Park Avenue on Parcel 2 as shown on Schedule MO(3).

9The question, therefore, is whether unit 1, located in the easternmost part of the building, is within the MO(3) exception to the MO zone applicable to the rest of the building. If so, the CBO should not have issued the permit and improperly exercised his authority in doing so, as a personal service business such as the respondent's body rub parlour is not a permissible use in the MO(3) zone. On the other hand, if unit 1 is not within the MO(3) zone, the CBO properly exercised his authority in issuing the permit, as in that case the easterly part of the building would be no different than the westerly part where the applicant's body rub parlour in unit 2A is an existing and permitted use.

10As already indicated, the entrance to the entire building is on Sparks Avenue. Unit 1 stretches along the eastern side of the building, parallel to and within 60 metres of the west side of Victoria Park Avenue, although all that one sees from Victoria Park is a brick wall lined with trees. Whether or not this unit is within the MO(3) zone therefore turns not on where the unit is situated within the building, but on how the building itself is situated vis-à-vis Victoria Park. Does the respondent's unit occupy space in the building that, under s. 64.34(3)(a) of the by-law, can be said to "front on the west side of Victoria Park Avenue"?

II. Standing

11Counsel for the respondent submits that the applicant, a neighbour of the respondent and occupier of another unit in the building, lacks standing to bring this application and to appeal the CBO's decision to issue the permit. He argues that the applicant's primary motivation -- indeed, its sole motivation -- in bringing this case to court is economic. Citing Rotstein v. Oro-Medonte (Township), at para. 18, the respondent's position is that the applicant is engaged in an impermissible form of "misuse by those who simply have some personal axe to grind and 'feel' aggrieved without any nexus of interest or effect to the decision". The applicant is a business competitor of the respondent's and, according to respondent's counsel, the sole objective of the applicant is to "wage wars against a competitor".

12Counsel for the applicant submits that there is a low threshold to the issue of standing. Under s. 25 of the Building Code, all that is required to appeal the decision to issue the permit is that the appellant be "a person who considers themselves aggrieved by a decision of the chief building official": Southgate Public Interest Research Group v. Southgate (Township), 2012 ONSC 5383, at paras. 85, 87, 93. He contends that it is an entirely subjective test.

13The subjective element of this test for standing is limited only to the extent that mischief-makers with no connection at all to the site of the permit are excluded. For standing purposes, it is sufficient that a challenger under s. 25 of the Building Code is a commercial competitor operating its business out of premises in the same building as the respondent: See 1218897 Ontario Ltd. v. Toronto (City) Chief Building Official, 2005 ONSC 4607, at para. 1.

14In any case, the evidence in the record is that in the recent past the applicant, acting through its director and sole shareholder, made inquiries of the city with respect to the prospect of the applicant operating a body rub parlour out of unit 1 in the building. The applicant's shareholder deposes that she was advised by city staff that the zoning of unit 1 would not support that use.

15This response by the city is not in writing, and the respondent submits that it is doubtful that any real inquiry was made by the applicant. The respondent further observes, accurately as far as it goes, that the applicant never actually applied for a building permit. The respondent therefore contends that the applicant cannot say that it was turned down or that it exhausted all available steps before concluding that unit 1 was not zoned for the proposed use.

16The record before me demonstrates that the principal of the applicant and her property lawyer attended at the city's building department and signed the registration sheet. There would be little reason to sign in at the building department's information window if not to inquire about a property. There is no indication that the applicant ever planned for a renovation at its existing premises in unit 2A of the building, or had any other reason to attend at the building department.

17I have no reason to doubt the applicant's sworn evidence that it expressed an interest in the building in contemplation of doing what the respondent ultimately did -- i.e., renovating unit 1 in order to operate a body rub parlour from that location along Victoria Park Avenue. Having received a negative answer over the counter, it was not incumbent on the applicant to go to the expense of having plans drawn up and submitted only to be given a more formal rejection by the CBO.

18The applicant is not seeking to appeal a decision respecting its own application for a building permit; in that case, a formal decision by the CBO would be necessary before the applicant could pursue an appeal. Rather, the applicant is seeking to challenge a decision made in respect of the respondent's permit; in view of the low threshold for standing, the applicant has established a sufficient interest in the issue to bring this application.

III. Standard of Review

19It is long recognized that municipal decisions in the development approval process are entitled to deference unless the decision maker has acted outside its powers or in bad faith: see, generally, Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 321, at p. 333 O.R.; Devine, P., "The City, the Ontario Municipal Board, and the Courts: Defining and Assigning Roles in Balancing Public and Private Interests" (2002), 6 DMPL 335, at p. 339. Similar logic applies to the issuance of a building permit. In Berjawi v. Ottawa (City), 2011 ONSC 236, at para. 12, the court pointed out that "it must be recognized that municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most of the determinations made by CBO's in the context of by-law interpretation are mixed questions of fact and law. This requires a significant degree of deference for all but purely legal questions."

20Counsel for the applicant takes issue with this view. While he concedes that the issuance of a building permit entails a mixture of fact and law, he submits that, "to the extent that his decision is based on the proper legal interpretation of the zoning By-law, the Chief Building Official is required to be correct": Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 47 O.R. (3d) 374, at para. 30.

21The CBO's decision must therefore be located on a sliding scale from fact to law. "[T]he more that the decision is a determination of law, the closer the standard will be to correctness. The more that the decision is dependent upon factual determinations within the special expertise of the Official, the more deference should be given, with a standard of reasonableness being applied": 2161907 Ontario Inc. v. St. Catharines (City), 2010 ONSC 4548 [at para. 12]. Given the need for any issue of by-law interpretation to take place within a specific factual matrix, it is not surprising that, "For most issues, the standard of review will be reasonableness": Berjawi, at para. 12.

22Under the circumstances, the question is whether the by-law's use of the word "front" can be applied to the Victoria Park Avenue portion of the building. In other words, it is a classic case of mixed fact and law; it cannot be answered in the abstract or in the absence of the specific urban geography at issue. It therefore must be reviewed on a reasonableness standard. As the court put it in Berjawi, at para. 12, "to be upheld on a reasonableness standard, the decision must fall within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law".

IV. "Front" as a Noun or a Verb

23In interpreting whether the building, and in particular unit 1, "fronts" on Victoria Park Avenue, the respondent and city rely on the definition found in s. 2.40 of the by-law:

"Front" shall mean the elevation of a building which is opposite the main access street.

24They submit that since the front entrance of the building is opposite the main access street -- Sparks Avenue -- no portion of the building falls within the definition of "front" as it pertains to Victoria Park Avenue. The "front" of the building -- used as a noun -- is on Sparks.

25Accordingly, it is the respondent's and city's position that s. 64.34(3) does not apply the exclusionary MO(3) zone to the 60 metres of the building that stretch along Victoria Park. Otherwise, one is left with the absurd result that the side of the building is dubbed the "front". In the respondent's and the city's view, the entire building, including unit 1, is within the MO zone which permits a personal service business such as a body rub parlour.

26The respondent and the city submit that any other interpretation creates ambiguities and ignores the clear meaning of the words employed in the by-law.

27The applicant, on the other hand, submits that the definition in s. 2.40 of the by-law is inapplicable to the use of the word "front" as found in s. 64.34(3). It argues that this latter section has nothing to do with the elevation of the building or its front entrance, and that the definition in s. 2.40 applies to a different building configuration and context.

28Accordingly, it is the applicant's position that the building "fronts" -- used as a verb -- on Victoria Park. Accordingly, it postulates that s. 64.34(3) applies the exclusionary MO(3) zone to the 60 metres of the building that stretch along Victoria Park; otherwise, one is left with the absurd result that a structure with the municipal address 3670 Victoria Park Ave. has no frontage on Victoria Park Ave. In the applicant's view, the MO zone which permits a personal service business such as a body rub parlour does not apply to unit 1.

29The applicant submits that any other interpretation creates ambiguities and ignores the clear meaning of the words employed in the by-law.

30In other words, both sides in this debate seek to apply the "clear meaning" rule of interpretation to the statutory provision in hand. It is plain and clear that "front" means the front entrance of the building. It is likewise plain and clear that "front" means facing the street with a stretch of the building regardless of whether that stretch is comprised of a brick wall or a doorway.

31Since neither interpretation is clearly right or clearly wrong, the controversy demonstrates the fact that interpretive rules such as this are a mirage, with false meaning shimmering in what is otherwise a hermeneutic desert. As Professor Ruth Sullivan points out, although "doctrines like the plain meaning rule . . . do not fully or accurately reflect what judges must do to resolve interpretation disputes, they generate a reassuring rhetoric. If we can't have simple messages and certain outcomes, reassuring rhetoric is the next best thing": Sullivan, R., "The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation", Legal Drafting (University of Ottawa), http://aix1.uottawa.ca/resulliv/legdr/pmr.html.

32Each of the parties not only sees its own reading of the by-law as clear on its face, but sees the other as a distortion of the words' meaning and of legislative intent. These respective positions reflect Karl Llewelyn's renowned observations about the cannons of statutory construction -- i.e., for every interpretive rule or maxim there is a countervailing rule or maxim. Here, for example, Llewellyn's rule #12 appears apt [Llewellyn, K., "Remarks On the Theory of Appellate Decision and the Rules or Canons of Construction About How Statutes are to be Construed" (1949-1950), 3 Vanderbilt L. Rev. 395, at p. 403]:

If language is plain and unambiguous it must be given effect.

Not when literal interpretation would lead to absurd or mischievous consequences or thwart manifest purpose. (Citations omitted)

33This clash of meanings for the word "front", each of which is plausible from a logical and linguistic point of view, making each simultaneously a formally valid and invalid interpretation, does not necessarily impede statutory interpretation. As Judge Richard Posner has written, ". . . the rejection of formalism as a method of statutory interpretation doesn't condemn us to universal skepticism about the possibility of interpretation. Interpretation is no less a valid method of acquiring knowledge because it necessarily ranges beyond the text": Posner, R., "Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution" (1986), 37 Case Western Reserve L. Rev. 179, at p. 191.

34The key to interpreting this type of statutory provision is to acknowledge that formalism, in the form of linguistic analysis and logical deduction from the text of the legislation, does not provide an answer. One must venture outside of the text of the by-law to interpret it in a way that is meaningful to those to whom it is communicates. And since the context of the enactment is municipal zoning policy, it is to that policy context that one must turn in order to make sense of the admittedly murky language.

35Indeed, one might say that "[t]he murkier a provision is, the more important policy considerations are in interpreting it": Posner, at p. 213. No one, including the city and its counsellors that enacted the by-law, has a linguistically or logically unchallenged definition of "front". We therefore must recede from formal interpretation and enter the world of policy.

36This is not to say that the court makes its own policy choices in the guise of interpreting city council's policies. Nevertheless, it does compel the court to acknowledge that the quest to discern council's intention -- the typical exercise in which courts engage in interpreting a legislative instrument (see Willick v. Willick, [1994] 3 S.C.R. 670, at p. 699 S.C.R.; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 581 S.C.R.) -- may amount to little more than imposing the court's preferred policy. After all, as Judge Frank Easterbrook has observed, "We hear in the [legislative] debates what we prefer to hear -- and our preferences differ widely": Easterbrook, F., "Text, History, and Structure in Statutory Interpretation" (1994), 17 Harv. J. L. & Pub. Pol'y. 61.

37There is nothing to suggest that council ever turned its mind to the question of "front" is as a verb vs. "front" as a noun. Rather, this appears to be a case of inadvertent ambiguity, requiring something more than mere retrieval of a lost legislative intent: Raz, J., "Interpretation Without Retrieval" in: Marmor, A., ed., Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995), at p. 155.

38What legal scholars have demanded from courts is a dynamic approach to interpretation that can move with unanticipated fact situations: Eskridge, W., Dynamic Statutory Interpretation (Cambridge, Mass.: Harvard University Press, 1994), at p. 52. "[W]ords are not born with meanings. Words take their meaning from contexts": Easterbrook, at p. 61.

39As an institution mandated to interpret and apply, but not to create public policy, it is incumbent on the court to take what Professor William Eskridge has labeled a "public values approach". In this, an interpreting court "should emphasize expanded context . . . and the importance of background understandings . . . [and] should explicitly consider not just the text and legislative history of a statute, but also its entire public law context and current concepts of reasonableness": Eskridge, W., "Public Values in Statutory Interpretation", 137 U. Penn. L. Rev. 1007, 1017 (1989).

V. The Zoning Policy

40The expanded context of the by-law here, and the public values it embodies, relate to the socio-economic and geographic contours of the streetscape of Victoria Park Avenue and environs. As Laskin C.J.C. pointed out in R. v. Bell, [1979] 2 S.C.R. 212, at p. 219 S.C.R., zoning by-laws generally identify uses of buildings in a given environment. In addition, they separate those uses from each other so that given geographical areas are characterized by the specified type of building use: Scarborough (Township) v. Bondi, [1959] S.C.R. 444, at p. 451 S.C.R. Zoning policy generally does this with a view to uniformity (Toronto (City) v. Mandelbaum, [1932] O.R. 552), in a way long considered to be a "natural and sensible" approach to neighbourhood planning: Ottawa (City) v. Royal Trust Co., [1964] S.C.R. 526, at p. 538 S.C.R.

41Section 64.34(3)(a) of the by-law goes out of its way to distinguish the first 60 metres of buildings along Victoria Park from the rest of those buildings set back further than 60 metres. Zoning map 47 that accompanies the by-law illustrates this divide, drawing a line through what would be the middle of the building and separating its easterly portion from the rest of the units on the westerly side.

42To contextualize this divide, one can appreciate from zoning map 47 that Victoria Park Avenue is the area's major north-south thoroughfare while Sparks Avenue, like a number of the other east-west streets that are shown running off of Victoria Park, is a smaller side street. Whatever the city meant by the word "front", it is apparent from the policy context that the property use and business environment along the main thoroughfare is to be distinguished from the business and property use environment that exists along the side streets.

43This policy of differentiating between Victoria Park and side streets like Sparks Avenue applies equally to the building as to any of the other properties shown to be within the MO(3) zoning on map 47. As a matter of planning policy, land use restrictions apply to zones, not to individual buildings or parcels, unless some special consideration can be brought to bear on a particular property: North York (Township) (Re), [1960] O.R. 374, at para. 17. The applicable zoning map here follows this pattern, and does not single out the building for any special treatment.

44Champions of zoning hail the value of uniformity and critics of zoning condemn the stratification of the urban landscape that it engenders: see Frug, G., "The Geography of Community" (1996), 48 Stan. L. Rev. 1047. However, there is no interpretation of a zoning ordinance which does not attempt in some way to rationalize land uses by grouping them into an organized structure for local public welfare. As the U.S. Supreme Court observed in perhaps the most renowned zoning case of the 20th century, "the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality": Village of Euclid v. Ambler Realty Co., 272 U.S. 365, at p. 388 U.S.

45To distinguish one property along Victoria Park from another, regardless of where the entrance of the buildings is located, would be to individualize the zoning of the building. That, in turn, would extract it from the zoning applicable to its neighbours for "no rhyme nor reason, in a planning sense": North York (Borough) v. H.G. Winton Ltd. (1978), 20 O.R. (2d) 737, at p. 12 M.P.L.R. After all, the by-law regulates uses, not doorways.

46The by-law's reference to any unit within 60 metres of Victoria Park must be read in this policy light, as applied to the length of Victoria Park designated as MO(3) on zoning map 47. The point of this zoning is to organize the properties along the north-south thoroughfare in accordance with a limited number of commercial uses. A larger variety of commercial uses, including a body rub parlour, is permitted as one moves 60 metres west in the building, away from Victoria Park.

47Applying the public values and policy considerations at stake in a zoning enactment, s. 64.34(3)(a) of the by-law places unit 1 of the building within the MO(3) zone. To conclude otherwise would be to impose an arbitrary and meaningless policy onto this stretch of Victoria Park Avenue.

48In issuing the permit on the basis that unit 1 of the building is within the MO zone and not the MO(3) zone, the CBO ignored the by-law's policy context in its entirety. He thereby made not just an incorrect decision, but an unreasonable one.

VI. Disposition

49The conversion of unit 1 of the building contravenes s. 1.4.1.3(1)(f) of O. Reg. 332/12, as a body rub parlour is not a permitted use of that unit under s. 64.34(3)(a) of the by-law. Accordingly, the permit was improperly issued pursuant to s. 8(2) of the Building Code Act, and is hereby revoked.

VII. Costs

50Counsel for the applicant has submitted a bill of costs that details costs in the total amount of over $56,000, on a partial indemnity basis. Counsel for the respondent has submitted a bill of costs that adds up to just over $12,500 on the partial indemnity scale, while counsel for the CBO has submitted a bill of costs that comes in at $17,000.

51The substantial discrepancy among the parties gives me pause. I do not doubt that applicant's counsel put in the hours that his bill sets out, and I can confirm that counsel's investment of time and effort paid dividends in the form of a successful application. I also observe that much as applicant's counsel's bill of costs seems a bit high, respondent's counsel's bill is surprisingly low. This application was rather involved in terms of both facts and law, and entailed affidavits, cross-examinations, factum writing, substantial legal research and court appearances.

52Costs are discretionary under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under rule 57.01(1)(0.b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I am authorized to take into account, inter alia, "the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed". Given that the bills of costs were provided to me prior to the parties learning the results of my judgment, they were not produced strategically and are all reliably genuine estimates of the costs incurred.

53The respondent and the CBO each seek less than half the costs sought by the applicant. Of course, the applicant had to take on both of those parties, and there was good coordination and surprisingly little repeated material as between the respondent and the CBO. Together, the respondent and the city come in at just under $30,000. It is reasonable to assume that this is also the range that they would have expected their joint opponent to incur in mounting its case.

54The respondent and the CBO shall together pay the applicant $30,000 in costs, inclusive of all fees, disbursements and HST. They are jointly and severally responsible for this payment of $30,000.

Application allowed.

End of Document