COBOURG COURT FILE NO.: 125/09A

DATE: 201608112

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

WILLIAM DEAVITT and WENDY DEAVITT, Respondent (Plaintiff)

AND:

TERRY FLOYD GREENLY, SANDRA LYNN GREENLY, TERRATEC ENVIRONMENTAL LTD./AMERICAN WATER, TRI-LAND ENVIRONMENTAL (1529086 ONTARIO LIMITED), CORPORATION OF THE TOWN OF COBOURG, COBOURG WATER POLLUTION CONTROL PLANTS #1 AND #2, CORPORATION OF THE MUNICIPALITY OF TRENTHILLS, DR. LYNN NOSEWORTHY and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Appellants (Defendants)

AND:

TERRATEC ENVIRONMENTAL LTD. and 1529086 ONTARIO LIMITED, carrying on business as TRILAND ENVIRONMENTAL

Third Parties

BEFORE: Justice S. J. Woodley

COUNSEL: Kristin Muszynski and Jennifer Savini, Counsel, for the Appellant, The Corporation of the Town of Cobourg (Defendant)

Nolan R. Downer, Counsel for the Appellants, Terry Floyd Greenly and Sandra Lynn Greenly (Defendants)

Donald R. Good, Counsel for the Respondents, William Deavitt and Wendy Deavitt (Plaintiffs)

HEARD: In writing

ENDORSEMENT RE COSTS

Overview

[1] The Defendants, Terry Floyd Greenly and Sandra Lynn Greenly (the “Greenlys”), and the Corporation of the Town of Cobourg (“Cobourg”), each brought a Motion for Leave to Appeal the decision of Justice MacDougall dated March 24, 2016, on the basis that he erred in his application of the law on summary judgment and that all of the Plaintiffs’ claims should be dismissed as a genuine issue requiring trial has not been raised.

[2] For Reasons for Decision dated August 12, 2016 (Deavitt v. Greenly, ONSC 2016 5146) I granted leave for the Motions filed by the Defendants the Greenlys and Cobourg.

[3] I invited costs submissions if the parties were unable to agree. The Defendants the Greenlys and Cobourg has filed submissions seeking costs. This endorsement relates to the request for costs made by the Defendants for the motion for leave to appeal.

Positions of the Parties

[4] The Greenlys seek costs fixed at $3,717.20 and Cobourg seeks costs fixed at $4,475.16, both inclusive, on a partial indemnity basis.

[5] The Plaintiffs submit that the costs sought are reasonable, however, payment of the costs will create a tremendous financial burden on the Plaintiffs as they are impecunious.

[6] The Plaintiffs claim that their current state of impecuniosity is related to the alleged claim of nuisance against the Defendants and the recent loss of employment by the Plaintiff Mr. Deavitt. In the circumstances, the Plaintiffs seek that the costs be fixed as requested but payable in accordance with the directions of the Divisional Court on its order relating to the appeal on the final resolution of the appeal.

The Law

[7] 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.

[8] While the Plaintiffs argue that costs should be fixed but payable in accordance with the directions of the Divisional Court, the Defendant Cobourg submit that a parties’ impecuniosity should not be taken into account when determining costs (see Cicinski v. Ontario (Ministry of Transportaion) 2014 ONSC 1052 at para 5; St. Lewis v. Rancourt 2013 ONSC 6118 at para 34; Westerfelt v. Frappier Estate 1999 CarswellOnt 240 at para 9).

[9] While I agree that the courts generally acknowledge that impecuniosity should not be taken into account when determining costs, I note that the application of this principle is generally used for determination of whether costs are payable. The determination of when costs are payable remains in the discretion of the court.

[10] Rule 57.03(1) provides that a court shall fix the costs of a contested motion and order them to be paid within 30 days unless the court is satisfied that a different order would be more just.

[11] In the present case I am satisfied that a different order would be more just.

Disposition of Costs

[12] The Defendants are entitled to their costs. Greenlys’ costs are fixed at $3,717.20 and the Cobourg’s costs are fixed at $4,475.16. The costs as fixed by me shall be payable following the final resolution of the matter by the Divisional Court in accordance with the directions of the Divisional Court on the final resolution of the appeal.

Madam Justice S. J. Woodley

Date: October 20, 2016

COBOURG COURT FILE NO.: 125/09A

DATE: 20161020

ONTARIO

SUPERIOR COURT OF JUSTICE

WILLIAM DEAVITT and WENDY DEAVITT, Respondent (Plaintiff)

AND:

TERRY FLOYD GREENLY, SANDRA LYNN GREENLY, TERRATEC ENVIRONMENTAL LTD./AMERICAN WATER, TRI-LAND ENVIRONMENTAL (1529086 ONTARIO LIMITED), CORPORATION OF THE TOWN OF COBOURG, COBOURG WATER POLLUTION CONTROL PLANTS #1 AND #2, CORPORATION OF THE MUNICIPALITY OF TRENTHILLS, DR. LYNN NOSEWORTHY and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Appellants (Defendants)

AND:

TERRATEC ENVIRONMENTAL LTD. and 1529086 ONTARIO LIMITED, carrying on business as TRILAND ENVIRONMENTAL

Third Parties

ENDORSEMENT

The Honourable Madam Justice S.J. Woodley

DATE RELEASED: October 20, 2016