Caledon (Town) v. Waterstone Properties Corporation
CITATION: Caledon (Town) v. Waterstone Properties Corporation, 2017 ONSC 707
COURT FILE NO.: CV-15-540026 and CV-15-537588
DATE: 20170130
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: FILE #CV-15-540026
The Corporation of the Town of Caledon, Applicant
AND:
Waterstone Properties Corporation and Wyndcliffe Developments Inc., Respondents
AND:
FILE #CV-15-537588
Waterstone Properties Corporation and Wyndcliffe Developments Inc., Applicants
AND:
The Corporation of the Town of Caledon, Respondents
BEFORE: R.F. Goldstein J.
COUNSEL: Signe Leisk and Adrianna Pilkington, for the Town of Caledon
Milton Davis, for Waterstone
HEARD: In Writing
ENDORSEMENT
[1] This case concerned ownership of a parkette in the Town of Caledon called Kingsview Parkette. A developer (Waterstone and Wyndcliffe, who I will simply refer to as Waterstone for the purposes of this Costs Endorsement, as I did in the Reasons for Judgment) claimed ownership based on a 1972 subdivision agreement and registration under the Land Titles Act. The Town claimed ownership based on a 1973 subdivision agreement, as well as under the doctrines of adverse possession and dedication and acceptance. Each brought an application for a declaration. Waterstone also asked for damages. Millions of dollars were potentially at stake. Ultimately I decided for the Town: The Corporation of the Town of Caledon v. Waterstone Properties Corporation and Wyndcliffe Developments Inc., 2016 ONSC 5394.
[2] The Town now seeks costs in the amount of $215,851.98 on a partial indemnity basis. This represents slightly over 60% of its actual fees of $351,689.51. The Town says that the basic principle that the winner is entitled to costs applies: Phanlouvong v. Northfield Metal Products (1994) Ltd., 2015 ONSC 33.
[3] Waterstone argues that no costs should be paid. Waterstone argues that in matters of public interest where both parties act in good faith, costs are not appropriate: Valpy v. Ontario (Commission on Election Finances) (1989), 1989 CanLII 4330 (ON SC), 67 O.R. (2d) 748 (Div.Ct.).
[4] I disagree that no costs should be awarded. It is true, as Waterstone points out, that the Town indicated in its costs outline under Importance of the Issues that:
The enforcement of subdivision agreements at issue and the commitments made by developers in securing development approval is of great importance to municipal governments in Canada.
[5] This case raised an important issue of public policy only in the sense that the Town was required to defend the notion that a developer could re-open a decades-old subdivision agreement. I do not agree that there were broader issues of public concern, except insofar as the Town is responsible for safeguarding the funds and property of its citizens.
[6] Furthermore, this case is entirely distinguishable from cases like Valpy, supra. In Valpy, the applicant was journalist. He sought documents filed in the course of a controversial provincial party leadership campaign. There are obvious issues of public interest involving competing and important values in a case like that: freedom of the press, the public’s right to know, the government’s right to safeguard sensitive information, and so forth.
[7] This case involved nothing like that. This was an attempt by a private developer to obtain land, or, failing that, money in lieu of land. As Newbould J. observed about Stetson Oil & Gas Ltd. v. Stifel Nicolaus Canada Inc., 2013 ONSC 5213 at para. 26: it was a straight contest about money – except with a twist. The twist, of course, is that it was only about money for Waterstone. It was also about money for the Town, obviously, but it was also about safeguarding the public’s ability to continue to use a recreational resource. Waterstone did not bring its application in a selfless attempt to litigate important issues of public policy. What it sought was a windfall.
[8] Therefore, I agree with the Town that costs should follow the event here.
[9] Rule 57.01 of the Rules of Civil Procedure sets out the factors that a court may consider:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, 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;
(0.b) 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;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
[10] The fundamental principle is that costs awards must be fair and reasonable in the circumstances: Boucher v. Public Accountants Council for Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[11] In Andersen v. St. Jude Medical Inc. (2006), 2006 CanLII 85158 (ON SCDC), 264 D.L.R. (4th) 557, [2006] O.J. No. 508 (Div.Ct.) the Divisional Court analyzed the principles that a judge should consider in determining the appropriate quantum of costs:
The discretion of the court must be exercised in light of the specific facts and circumstances of the case in relation to the factors set out in Rule 57.01(1): Boucher, Moon and Coldmatic.
A consideration of experience, rates charged and hours spent (formerly a costs grid calculation) is appropriate, but is subject to the overriding principle of reasonableness as applied to the factual matrix of the particular case: Boucher. The quantum should reflect an amount the court considers to be fair and reasonable rather than any exact measure of the actual costs to the successful litigant: Zesta Engineering.
The reasonable expectation of the unsuccessful party is one of the factors to be considered in determining an amount that is fair and reasonable: Rule 57.01(1)(0.b).
The court should seek to avoid inconsistency with comparable awards in other cases. "Like cases, [if they can be found], should conclude with like substantive results": Murano at p. 249.
The court should seek to balance the indemnity principle with the fundamental objective of access to justice: Boucher.
A discretionary decision of a case-management judge in a class proceeding is entitled to a very high level of deference: Khan and Bre-X.
[12] In examining some of the specific factors set out in Rule 57.01 (and without exhaustively dealing with every one of them) I consider the following to be important:
• This was a complex application. The factual issues stretched back into the 1960’s. The key agreements under consideration were over 40 years old, but the factual matrix included agreements and correspondence stretching over those 40 years. The matter engaged issues of property law, zoning, and municipal law.
• The issue was important to the Town in the sense that I have described. It was also financially important.
• Waterstone did engage in some vexatious conduct. The broad documentary discovery sought caused the Town to conduct a large and exhaustive search for and review of documents. Many of those documents were decades old. The documents were made available but Waterstone never attended to review them.
• Given the nature of the claim, Waterstone (clearly a sophisticated consumer of legal services) would have had to expect that the legal fees expended would be enormous. It launched a massive attack on a municipality that was designed, as I have pointed out, essentially to obtain a windfall.
[13] I do not think that the fact that there were two applications is particularly germane. The only real reason the Town brought its application was because Waterstone raised the dispute. The two applications were essentially treated as one, which made sense considering the factual and legal issues were basically the same.
[14] Neither party has submitted detailed dockets in support of their costs outlines. I note that most of the Town’s legal work was done by a relatively junior lawyer, saving costs. For the purposes of this endorsement, and guided by the percentage rate discussed by Newbould J. in Stetson I find that an amount of $210,000.00 awarded to the Town is appropriate.
R.F. Goldstein J.
Date: January , 2017