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
[1] I heard this application at Welland, Ontario on November 27, 2015.
[2] Written reasons were released to the parties on February 12, 2016.
[3] I 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
[4] The 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
[5] Mr. 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.
[6] The applicant did not file a Bill of Costs.
Analysis
[7] In 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.
[8] Neither party presented in their costs submissions offers to settle in accordance with Rule 49 of the Rules of Civil Procedure.
[9] The court, in awarding costs, is governed by the general principles and factors outlined in Rule 57.01(1) of the Rules of Civil Procedure.
[10] Applying 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.
[11] The 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.
[12] The 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.
[13] The issue is clearly one of importance for both of the parties in the litigation.
[14] For 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.
[15] I 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.
[16] The 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.
[17] The applicant would not agree to any such resolutions and, thus, the trespass notice was issued by the responding Town.
[18] Although 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.
[19] In 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
[20] The 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.