Court File and Parties

COBOURG COURT FILE NO.: 49/13 DATE: 20160816 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Ian Angus and Daphne Angus Plaintiffs

– and –

The Corporation of the Municipality of Port Hope Defendants

Counsel: M. John Ewart, for the Plaintiffs Kristin Musczynski, for the Defendants

READ: August 15, 2016 Woodley, S. J.

REASONS FOR DECISION re costs

Overview

[1] The Plaintiffs brought a motion for partial summary judgment. The motion sought to determine whether a municipal by-law prescribing permit fees for the importation of fill material, are in substance a tax and thus ultra vires as beyond the powers of the Municipality.

[2] The motion first came before me on November 16, 2015. By Endorsement dated December 11, 2015 ([Angus v Corporation of the Municipality of Port Hope, 2015 ONSC 7788](Angus v Corporation of the Municipality of Port Hope, 2015 ONSC 7788)), I found that the evidence filed by the Defendant was insufficient to allow a determination of the issue. Invoking the new fact-finding powers under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I ordered the Defendant to file further supplementary materials to address the issue of whether there is a nexus between the fees charged by By-law 47/2012 and the actual or estimated cost of administering the scheme and otherwise whether the fees were part of a larger regulatory scheme. Costs were reserved to the final determination of the motion.

[3] Following delivery of written submissions I determined the issues as follows:

a. This matter may be determined by summary judgment.

b. The fee schedule contained in the Municipal Site Alteration and Fill By-law (29 May 2012) fails to comply with the provisions of the Municipal Act, 2001, S.O. 2001, c. 25, and is thus ultra vires.

c. The fee schedule contained at Section 5.1(b) of the Municipal Site Alteration and Fill By-law (29 May 2012) is severable and is hereby ordered severed from By-law 47/2012 effective June 20, 2016. All remaining provisions of By-law 47/2012 remain in full force and effect.

[4] The parties have been unable to agree on costs and have filed further submissions regarding costs.

[5] The Plaintiffs seeks costs in the amount of $15,085.50 plus HST and disbursements of $5,260.43, inclusive. Although it is not specifically stated whether these costs are on a partial, substantial or full indemnity basis, the legal accounts submitted suggest that the request is on a full indemnity basis.

[6] The Defendant submits that there was divided success and no costs should be awarded with respect to the motion. Alternatively, if costs are to be awarded, the Defendant submits that the costs sought by the Plaintiffs are excessive and should be reduced.

The Law Relating to Costs

[8] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.

[9] In the present case the Defendant argues that success was divided. Specifically the Defendant submits that the Plaintiff was not successful in having the By-law struck down in its entirety nor was the Plaintiff successful in obtaining an injunction preventing the enforcement of the By-law on the Plaintiff’s land.

[10] Success in my opinion was not divided but partially obtained. The Plaintiff was successful in striking down the fee structure of the By-law. I upheld the By-law due to its significant importance to the environment, citizens and the community, and due to the severability of the fee structure. However, this finding does not negate the fact that the fee structure was struck down as ultra vires nor does severance translate to any “success” to the Defendants regarding the ultra vires issue.

[11] As success was obtained by the Plaintiff and there is no good cause to depart from the general principle, the Plaintiffs are entitled to their costs. The only questions to be determined by me are the appropriate scale of costs that should be applied to the proceeding, and the appropriate costs that should be awarded in relation to the scale.

Scale of Appropriate Costs

[12] It is within my discretion to award costs on a partial indemnity basis or a substantial indemnity basis and to order that such costs be fixed or assessed. In the present case I have been presented with no grounds to award costs on a substantial indemnity basis. The costs then shall be determined on a partial indemnity basis as fixed by me.

Quantum of Costs

[13] Pursuant to Rule 57 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194, I am required to fix costs in all but exceptional cases. This is not an exceptional case and I will fix the costs.

[14] Counsel for the Plaintiffs provided a Costs Outline together with several legal bills issued to the Plaintiffs during the litigation supporting the Outline. The costs sought purport to be the actual costs expended by the Plaintiffs for the argument on this motion.

[15] Counsel for the Defendants submits that no costs are payable given the divided success. I have already determined that the Plaintiffs are entitled to their costs. The Defendants alternate argument is that if costs are payable the costs be limited to the actual costs of this motion on a partial indemnity basis excluding fees paid to H.R. Graham Partners.

[18] The question now arises as to the appropriate quantum of costs to award, if costs are awarded.

[19] In exercising my discretion to determine the appropriate award of costs payable, I have specifically considered the issues of proportionality, complexity, and importance of the issues to the parties.

[20] Further, I have reviewed and considered the Bill of Costs supported by four legal accounts rendered to the Plaintiffs dated August 10, 2015, August 20, 2015, December 9, 2015, and May 12, 2016. The total costs as summarized are 44.5 hours at $300.00 per hour with disbursements of $5,260.43, including a legal opinion disbursement of $4,361.50.

[21] With respect to the time detailed by the account dated August 10, 2015, the entries appear to relate to a previous summary judgment motion heard by me on July 29, 2015. The costs and charges do not relate to the motion heard on November 16, 2015. I discount the entirety of the invoice.

[22] The account dated August 20, 2015, is for legal fees of $180.00 and a disbursement charge of $4,361.50 regarding an “opinion from litigation counsel”. The account contains no further description of the charge and there was no explanation of the disbursement contained in the Plaintiffs’ costs submissions. While the legal account dated August 10, 2015 notes meetings and correspondence with “litigation counsel” - it is impossible to determine whether the advice is for the July 29, 2015 motion or the November 16, 2015 motion. In the circumstances there is insufficient information to allow the disbursement and I deduct the amount in its entirety.

[23] The account dated December 9, 2015, details revisions to Factum and telephone conversations with client as well as preparation and attendance at the motion. The costs total $3,630.00 with disbursements of $281.75 for a total charge of $4,397.92.

[24] The final invoice dated May 12, 2016, contains entries totaling approximately 3.4 hours relating to the previous motion and I discount these entries. The remaining entries provide time of 10 hours at $300.00 per hour with HST. The disbursements relating to this account total $84.75.

[25] Having reviewed and considered the time spent and costs sought, I find that the fees sought for the solicitor charged at $300 per hour are entirely reasonable as is the time docketed by him. Save and except the noted deductions I would allow the entirety of the fees charged on a partial indemnity basis.

[26] Factoring the 26 years of experience and expertise of the Plaintiff’s lawyer, John Ewart, and having regard to the (non-binding) but instructive Tariff regarding fees, I find that Plaintiffs’ counsel’s billing rate is properly chargeable at $300 per hour for all basis including a partial indemnity basis.

[27] It would be inherently unfair to reduce the billing rates of local counsel with expertise and experience who limit their billing rates despite their competency. As such, while the Plaintiffs shall be entitled to receipt of their costs on a partial indemnity basis, for the purpose of calculating the appropriate costs, Mr. Ewart’s billing rate shall be calculated at $300 per hour on a partial indemnity basis. In coming to this conclusion I recognize that experience and expertise reduces the time expended. The issues argued at the motion were extremely complex and the results achieved were significant.

[28] Based upon my review and in accordance with the overreaching principles I have determined that the Plaintiffs shall receive their costs of the motion on a partial indemnity basis, fixed at $7,830.00 plus HST of $560.70 together with disbursements fixed at $380.77, inclusive.

Disposition

[29] I award costs to the Plaintiffs payable by the Defendant fixed at $8,771.47, inclusive of HST and disbursements payable within 90 days of the date herein.

Madam Justice S. J. Woodley Date: August 16, 2016