Court File and Parties

COURT FILE NO.: 16-253 DATE: 20170329

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: James Kritz v. City of Guelph and Bruce Aubrey, Inspector of the City of Guelph

BEFORE: Lemon, J.

COUNSEL: Mark Flowers and Kyle Gossen, Counsel for Applicant Patrick Harrington, Counsel for Respondents

COSTS ENDORSEMENT

The Issue

[1] On November 23, 2016, I granted the applicant’s request for an order requiring the City of Guelph to rescind an order of the City’s Building Inspector.

[2] At that time, I requested written costs submissions within 30 days of my endorsement. Although the respondent’s cost submissions are dated December 21, 2016 and apparently served shortly thereafter, they did not arrive in my office until the week of March 20, 2017. I am now to deal with the issue of those costs.

Position of Parties

[3] Mr. Kritz seeks costs on a substantial indemnity basis in the amount of $50,505.12 or costs on a partial indemnity basis in the amount of $37,482.01.

[4] In response, the City submits that no costs should be awarded to either party.

Legal Authorities

[5] Rule 57.01 of our Rules of Civil Procedure sets out the factors that the court may consider when determining costs. The relevant factors that I should consider here are:

(a) the result in the proceeding, (b) the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer; (c) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed; (d) the amount claimed and the amount recovered in the proceeding; (e) the complexity of the proceeding; (f) the importance of the issues; (g) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding.

[6] Modern costs rules are designed to foster three fundamental purposes: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; and (3) to discourage and sanction inappropriate behaviour by litigants: Fong v. Chan, (1999), 46 O.R. (3d) 330, at para. 22.

[7] Costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291, at para. 24.

Analysis

[8] Mr. Kritz was successful in his application and is presumed entitled to costs. I do not accept the City’s submission that because it was successful on two out of three arguments, there should be no costs. The City was unsuccessful; costs follow that event.

[9] Mr. Kritz relies heavily on the conduct of the City to support his submissions that there should be costs on a substantial indemnity basis. While there was much in the affidavit material about the City’s conduct, in order to proceed with this matter on the written record only, Mr. Kritz specifically withdrew the issue of the conduct of the City. Indeed, the matter proceeded, after some delay, on an agreed statement of facts. There was no finding in my ruling that the City had done anything improper. This decision was simply one of applying the law to the facts. Accordingly, any conduct of the City is not relevant to this determination. There is nothing to suggest other than partial indemnity costs.

[10] The argument was heard over a half-day. Although the factual issues were primarily resolved by way of an agreed statement, that could not be determined until after lengthy affidavits were prepared and cross-examinations had been completed.

[11] The City was forthright enough to provide its own partial indemnity bill of costs. It totalled $29,367.33. The City would therefore understand the costs consequences if it was unsuccessful.

[12] Mr. Kritz retained the service of an expert at a cost of $6,400. While I did not accept that evidence, it was appropriate for Mr. Kritz’s argument and the expense is reasonable.

[13] In all of the circumstances, I find that the City shall pay Mr. Kritz’s costs fixed in the amount of $37,482.01.

“Justice Lemon”

Lemon, J.

DATE: March 29, 2017