COURT FILE NO.: (Simcoe) 190/15 DATE: 2016/07/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Steven Buehner and Anita Buehner, Applicants and the Corporation of Norfolk County, Respondent
BEFORE: Justice Skarica
COUNSEL: Nancy Smith and Derek Collins, for the Applicants Mark Abradjian, for the Respondent
COST ENDORSEMENT
OVERVIEW
[1] Sometime in the 1980s, the Norfolk OPP required a shooting range for the local police and an informal arrangement was made by the OPP and the municipality. Over the years the range expanded into a sophisticated firing range for a variety of police forces. Stray bullets were found on the nearby Buehner’s property, which was being used both for farming and tourist purposes. The Buehner’s brought an application for an injunction to shut down the firing range.
THE HEARING AND RESULT
[2] After a two day hearing, I held that the shooting range was not in compliance with the local bylaws when it began operation and further, the firing range has grown in intensity in terms of its impact on the community so as to render any acquired right illegal.
[3] Accordingly, the applicants were granted an injunction, which shut down the shooting range.
[4] I further ordered that the respondent pay costs to the applicants.
ISSUES
[5] The applicants seek:
- Costs on a substantial indemnity scale - $96,352.73
- In the alternative, costs on a partial indemnity scale - $60,237.72
ISSUE #1 – SUBSTANTIAL INDEMNITY COSTS
[6] Shortly before the hearing, the respondent offered to cease all activity at the firing range and offered that the action be settled without costs.
[7] The applicants did not accept this offer as they wanted costs and wanted a clean-up of bullets on the Buehner property by the municipality and an environmental clean-up at the firing range. These environmental demands were not part of the application and did not form part of my judgment. However, the applicant was awarded its costs and accordingly, the respondent’s offer to settle without costs renders it the losing party in this litigation.
[8] The OPP were not made part of the application and this had an undetermined impact on the evidence that was available in assessing what had occurred some thirty years ago.
[9] I agree with the respondent’s position that substantial indemnity costs should only be awarded in those rare situations where there has been reprehensible, scandalous or outrageous conduct by the losing party – see, for example, Davies v. Clarington(Municipality), 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.) at paragraphs 40-49.
[10] On my review of the evidence and proceedings, the County fairly and forcefully presented its case as it was entitled to, and I can find no basis for any findings that can be categorized as reprehensible, scandalous or outrageous.
[11] This was a matter where both parties were represented by skillful counsel who argued their cases forcefully and ethically pursuant to the rules.
[12] Accordingly, the applicants’ claim for substantial indemnity costs is dismissed.
ISSUE #2 – PARTIAL INDEMNITY COSTS TO BE FAIR AND REASONABLE
[13] In Davies, Justice Epstein of the Ontario Court of Appeal indicated, at paragraphs 51 and 52:
51 In Andersen v. St. Jude Medical Inc. (2006), 264 D.L.R. (4th) 557, the Divisional Court set out several principles that must be considered when awarding costs:
- The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in rule 57.01(1): Boucher, Moon, and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC (2005), 75 O.R. (3d) 638 (C.A.).
- A consideration of experience, rates charged and hours spent is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering Ltd. v. Cloutier (2002), 119 A.C.W.S. (3d) 341 (Ont. C.A.), at para. 4.
- The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: rule 57.01(1)(0.b).
- The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 (C.A.), at p. 249.
- The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.
52 As can be seen, the overriding principle is reasonableness. If the judge fails to consider the reasonableness of the costs award, then the result can be contrary to the fundamental objective of access to justice. Rather than engage in a purely mathematical exercise, the judge awarding costs should reflect on what the court views as a reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs of the successful litigant. In Boucher, this court emphasized the importance of fixing costs in an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding at para. 37, where Armstrong J.A. said "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice."
[14] The respondent argues that the claim for partial indemnity by the applicants of $60,237.73 is not reasonable as the respondent’s partial indemnity claim would have been a total of $24,000 for about half the time spent by the applicants.
[15] This matter was not a simple one. The arguments went into a second day and it took me the large part of two days to review all the materials. The cross-examinations of relevant witnesses were extensive and numerous witnesses were cross-examined. The law itself was not entirely settled and is somewhat complex.
[16] Further, the applicants have the overall burden of proving their application (notwithstanding a shifting of burden on certain specific issues) and I do not find it surprising or unusual that the applicants were required to spend more time than the respondent in preparing their case.
[17] Further still, the application was an important issue to an entire community and required a thorough review of a significant collection of materials and evidence in order to properly present the applicants’ case.
CONCLUSION
[18] Accordingly, in these circumstances, I find the partial indemnity claim by the applicants of $60,237.93 to be reasonable in the circumstances and does not produce a result that is contrary to the fundamental objective of access to justice.
ORDER
[19] There will be an order for the respondent Norfolk County to pay the applicants partial indemnity costs fixed at $60,237.93 by August 15, 2016.
[20] I wish to thank counsel for their thorough and excellent submissions throughout.
Justice Skarica.
DATE: July 15, 2016