ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-0070-00 DATE: 2017-04-27

B E T W E E N:

John Brager and Nancy Brager Applicants

• and -

Her Majesty the Queen in Right of Ontario Represented by the Minister of Natural Resources Respondent

COUNSEL: J. Douglas Shanks, Cheadles LLP, for the Applicants Lisa Brost, Crown Counsel Law Office - Civil, for the Respondent

HEARD: via written submission (Kenora File)

BEFORE: Madam Justice B.R. Warkentin, R.S.J.

Reasons on Costs

[1] In paragraph 31 of my Reasons dated March 17, 2017 I found in favour of the Respondent and directed the parties to make written submissions on Costs within 20 days if they were unable to resolve the issue of Costs.

[2] Counsel for the Respondent is seeking partial indemnity costs inclusive of HST and disbursements of $12,675.82. Counsel for the Applicants argued that the amount claimed by counsel for the Respondent was excessive for this motion and proposed an award in the amount of $4,000.00, inclusive of HST and disbursements.

[3] An award of costs is a matter in the discretion of the judge by virtue of s. 131(1) of the Courts of Justice Act, which provides:

“Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent costs shall be paid.”

[4] Rule 57.01 of the Rules of Civil Procedure allows the court to take into account “any other matter relevant to the question of costs.” Read in conjunction with s. 131 of the Courts of Justice Act, the court therefore has wide discretion.

[5] The Ontario Court of Appeal has made it clear that in assessing costs, the overriding principle is one of reasonableness, and that the failure to follow that principle can produce a result that is contrary to the fundamental objective of access to justice (Boucher v. Public Accountants Council for the Province of Ontario, (2004), 71 OR (3d) 291 (Ont CA) at para 37).

[6] This case was somewhat unique. It was the Applicants’ motion to enforce a settlement that was opposed by the Crown (the Respondent) on the basis that the terms of the settlement sought by the Applicants were not part of the settlement agreement between the parties. The motion to enforce the settlement was granted, however, it was granted on the terms sought by the Respondent, not those sought by the Applicants.

[7] The dispute entailed the terms to be included in a full and final release that the parties had agreed upon as part of their settlement agreement.

[8] This matter was not complex; however, it was of significant importance to the parties. The essential issue before the court was one of interpretation with each party taking a different view of the meaning of the settlement agreement as it pertained to form of the releases. I determined that it was the Respondent’s interpretation that was the correct interpretation and as such granted the Applicants’ motion, however it was the terms sought by the Respondent as to the form of the Applicants’ release.

[9] Included in the Respondent’s Bill of Costs are 64.95 hours of an articling student and 29.8 hours for counsel for a total of 94.75 hours on which the Respondent is seeking partial indemnity costs. Conversely, the Applicants’ Bill of Costs reported a total of 19.8 hours for counsel and 12.1 hours for law clerk time expended on their motion.

[10] I agree with Applicants’ counsel that the time claimed by counsel for the Respondent is excessive for a motion of this nature.

[11] I therefore award costs to the Respondent payable by the Applicants in the amount of $5,000.00 plus HST and their disbursements of $679.32.

Madam Justice B. R. Warkentin R.S.J. Released: 2017-04-27