Court File and Parties

COURT FILE NO.: 108/15 DATE: 20170109 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Iris Pallas and Joseph Pallas, Plaintiffs AND: Her Majesty The Queen in the Right of Canada and The Ministry of Natural Resources, The Canadian Nuclear Laboratories, The Municipality of The Corporation of the City of Port Hope (Successor to the Corporation of the Town of Port Hope), The Corporation of The Municipality of Clarington, Jeff Faught and Marty Kapitan, Respondents

BEFORE: D. S. Gunsolus

COUNSEL: John Morand and James McGrath for the Plaintiffs Annik Forristal, for The Corporation of The Municipality of Clarington Jack Coop, for The Canadian Nuclear Laboratories and Jeff Faught and Marty Kapitan Suzanne Hunt, for The Corporation of the Municipality of Port Hope Elizabeth Tinker, for the Attorney General of Canada

Costs Endorsement

[1] On July 18, 2016, I heard a long motion wherein the various defendants sought, amongst other things, to strike the application brought by the applicants’, Iris and Joseph Pallas. They did so primarily upon the basis that the applicants were not privy to the agreement which they wished to have interpreted, and therefore this Court would not have jurisdiction under Rule 14.05(3)(d) of the Rules of Civil Procedure to hear this application.

[2] In some of the submissions that I received from the various parties, I was asked to deal with costs of the entire action and not just the motion I heard [^1]. I agreed to accept written costs submissions in relation to the motion only, and it will be only those costs that I deal with.

[3] I did not strike the applicants’ pleadings as requested by the respondents, but rather, granted them leave to convert their application to an action, within which they could pursue their various heads of damages. No party can claim complete success in relation to the motion.

[4] In their submissions, the applicants, for the first time in this litigation, raised an issue suggesting that they are public interest litigants and therefore should not be subject to costs under the normal cost rule. There is no explanation as to why the applicants raised this in cost submissions when it was never pled, nor argued during the hearing of the motion. The applicants clearly pursued a pecuniary interest in that they were seeking damages and declarations in relation to themselves and not in relation to anyone else. The applicants were litigating for their own commercial damages and all of the relief that they sought was personal to them.

[5] A review of this matter against the principles set out in Incredible Electronic Inc. et al v. Attorney General of Canada [^2] reflects the following: 1) The applicants are not partisans in a matter of public interest; 2) Their application did not raise issues of significance to the broader community as all the relief sought was personal to them; 3) They had a personal pecuniary interest which was unequivocally acknowledged by Iris Pallas; 4) they cannot be defined as marginalized, powerless or underprivileged members of society as the damages they sought related to their belief that the sale of their commercial property was adversely affected.

[6] I decline to exercise my discretion in order to award any costs to the applicants in the circumstances of this case.

[7] The respondents, The Attorney General of Canada, Canada Nuclear Laboratories, Jeff Faught and Marty Kapitan, as a group, seek costs in the amount of $94,661.62. The respondent’s, The Municipality of the Corporation of the Town of Port Hope seeks $12,154.27 and The Corporation of the Municipality of Clarington seeks $10,012.15 in costs.

[8] Given that the applicants could pursue this application no further unless they converted it to an action, to that extent, at least, the respondents have succeeded although not on the basis as pled by them. Nevertheless, the respondents should now be compensated for the ultimate success that they did achieve in seeing this litigation brought to an end, as a result of bringing this motion.

[9] In the circumstances, I order that the applicants, Iris Pallas and Joseph Pallas, shall pay to the respondents the following costs: (1) To the Attorney General of Canada, Canada Nuclear Laboratories, Jeff Faught and Marty Kapitan the amount of $15,000 plus disbursements of $4,149.35, plus HST (2) To the Corporation of the Municipality of Clarington, the amount of $2,500 plus HST; (3) To the Municipality of the Corporation of the Town of Port Hope, $2,500 plus HST.

[10] While this matter was somewhat complicated, it was a one day long motion and not a trial. Mr. Coop, on behalf of the Attorney General of Canada, Canada Nuclear Laboratories, Jeff Faught and Marty Kapitan, in all fairness, carried the bulk of the legal argument that the respondents pursued in their attempt to have this litigation brought to an end.

[11] Given the complexity of the matter, the length of the matter and the fact that the other respondents had less of a role in this motion, I believe the foregoing is a fair reflection of the principles set out in Rule 57 of the Rules of Civil Procedure and under section 131 of the Courts of Justice Act.

[12] An order will issue accordingly.

D. S. Gunsolus, J. Date: January 9, 2017

[^1]: During a subsequent teleconference, counsel advised that the applicants did not intend to pursue this matter by way of an action and, in effect, the matter is now at an end. [^2]: , 2006 80 OR (3d) 723