Court File and Parties

COURT FILE NO.: 10412/15 DATE: 2016/07/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Fredrick Bracken Self-represented Applicant

- and -

The Town of Fort Erie Christine G. Carter, for the Respondent Respondent

The Honourable Justice T. Maddalena

ENDORSEMENT ON COSTS

1I heard this application at Welland, Ontario on November 27, 2015.

2Written reasons were released to the parties on February 12, 2016.

3I received costs submissions of the Town of Fort Erie on March 4, 2016. I received costs submissions of Mr. Bracken on April 8, 2016.

Position of the Respondent Town of Fort Erie

4The Town of Fort Erie (the “Town”) seeks its costs on a partial indemnity basis (including disbursements and HST) fixed in the amount of $18,993.83.

Position of the Applicant Fredrick Bracken

5Mr. Bracken submits that no costs should be awarded as he is “a public interest litigant”. He submits that every citizen in the Town of Fort Erie has an interest in these proceedings and, therefore, no costs should be awarded.

6The applicant did not file a Bill of Costs.

Analysis

7In this application before me, the Town of Fort Erie was the successful litigant. Therefore, it is appropriate that costs are awarded to the successful party in these proceedings on a partial indemnity basis.

8Neither party presented in their costs submissions offers to settle in accordance with Rule 49 of the Rules of Civil Procedure.

9The court, in awarding costs, is governed by the general principles and factors outlined in Rule 57.01(1) of the Rules of Civil Procedure.

10Applying those factors in this case, I find that the hourly rate of $325 on a partial indemnity basis charged by counsel for the respondent Town to be reasonable, particularly given her over 20 years of experience as counsel.

11The total number of hours spent by counsel for the respondent Town, as outlined in the Bill of Costs, is reasonable. The time docketed outside court time is proportionate to the complexity and importance of the case.

12The preparation of five affidavits, and the attendance on the cross-examination of seven witnesses, was necessitated by the nature of these proceedings before the court, and largely precipitated by the conduct of the applicant.

13The issue is clearly one of importance for both of the parties in the litigation.

14For consideration by the court is also the principle outlined in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3d) 291, that is, that one should fix an amount that is fair and reasonable for the unsuccessful party to pay rather than an amount fixed by the actual costs incurred by the successful party.

15I do not find that the applicant was a “special interest litigant”. The court found that it was his behaviour which crossed the line of appropriate public protest.

16The Town submits that it acted reasonably in that it made reasonable efforts to attempt to arrive at some guidelines which would allow the applicant to return to the Town on condition that he agreed to some basic rules of behaviour.

17The applicant would not agree to any such resolutions and, thus, the trespass notice was issued by the responding Town.

18Although the applicant’s behaviour crossed the line of peaceful protest, one must still apply the overriding principle of reasonableness and the costs award should reflect what is fair and reasonable for the unsuccessful party to pay.

19In consideration of all the aforementioned and those factors outlined in Rule 57.01(1) of the Rules of Civil Procedure, I conclude that $15,000.00 inclusive of disbursements and HST is fair and reasonable under the circumstances.

Order Made

20The applicant Fredrick Bracken shall pay to the respondent Town of Fort Erie costs fixed in the amount of $15,000.00 inclusive of disbursements and HST. These are payable within 60 days.

Maddalena J.