Court File and Parties
Court File No.: CV-16-0392 Date: 2017-04-06
Ontario Superior Court of Justice
Between:
ROCK SOLID HOLDINGS INC. Applicant
Counsel: B. Babcock, for the Applicant
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LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY Respondents
Counsel: No one appearing for the Respondents LAKEHEAD RURAL PLANNING BOARD and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, as represented by the MINISTER OF NATURAL RESOURCES AND FORESTRY
- and -
TROUT LAKE CAMPERS’ ASSOCIATION - and - THE SURPRISE LAKE CAMPERS’ ASSOCIATION Proposed Intervenors
Counsel: D. Zulianello, for the Proposed Intervenors (referred to as "the Respondents" in the context of the costs motion)
Heard: Via written submissions at Thunder Bay, Ontario
Before: Mr. Justice W.D. Newton
Decision on Costs
[1] On March 1, 2017, I delivered reasons (2017 ONSC 1414) dismissing the motion of the two campers’ associations to intervene in this proceeding.
[2] Rock Solid seeks its costs of this motion arguing that costs should follow the event. In its submissions, Rock Solid relies on certain offers to resolve the intervention motion and the underlining proceeding. As the full terms of those offers are not before me, I cannot, as the proposed intervenors correctly argue, take the purported terms of those offers into consideration.
[3] As there were cross-examinations on the affidavits filed by representatives of the two cottage associations, Rule 39.02(4)(b) of the Rules of Civil Procedure is triggered. That section provides that parties who cross-examine are liable for the partial indemnity costs of the other party “regardless of the outcome of the proceeding, unless the court orders otherwise.” I agree with Rock Solid’s submission that the “bald assertions” contained in the affidavits and failure for the affiants to answer appropriate questions is sufficient to “order otherwise.”
[4] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, [2002] O.J. No. 4495 (C.A.), at para. 4.
I have reviewed the hours docketed by counsel for both parties and recognize that Rock Solid’s counsel used junior counsel to assist. While at times that practice is efficient there is also some duplication when two counsel work together. I have allowed all of Mr. Babcock’s hours and approximately one half of Mr. Clark’s hours for each stage except cross-examination. I have determined that the amount that is fair and reasonable to be paid by the unsuccessful party for costs is $7750 plus HST, plus disbursements of $829.08. The two campers associations are jointly and severally liable for these costs which are payable forthwith.
“Original signed by”____ The Hon. Mr. Justice W.D. Newton