CITATION: Bodnar v. Thunder Bay (City), 2017 ONSC 750
COURT FILE NO.: CV-12-0189
DATE: 2017-01-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ian Bodnar
Respondent
- and -
The Corporation of the City of Thunder Bay
Applicant
M. Cupello, for the Respondent
E. Prpic, for the Applicant
HEARD: January 26, 2017, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] The City moves to stay my cost order dated November 22, 2016 pending the disposition of its application for leave to appeal the decision leading to that cost order.
[2] The decision for which leave to appeal is sought dismissed the City’s motion for summary judgment and was released on September 20, 2016. The City filed a motion for leave to appeal on October 11, 2016.
[3] Cost submissions for the motion were received mid November 2016 and my decision on costs was released on November 22, 2016. The cost submissions of the City included a request to either adjourn the cost decision pending the determination of the leave application or for an order that any costs awarded not be payable until disposition of the leave motion. While I decided that the costs should be determined at that time rather than after the appeal my reasons are silent with respect to the order requesting the stay. I fixed costs at $7500 plus HST. The order with respect to the costs was entered December 19, 2016. Mr. Bodnar is attempting to enforce the cost order and, hence, the City moves to stay.
[4] Counsel for Mr. Bodnar argues that the cost order has not been appealed. The motion for leave to appeal was, indeed, filed prior to the cost decision. He also argues that s. 133 of the Courts of Justice Act, R.S.O. c. C.43 requires leave to appeal where the appeal is only as to costs.
[5] The City argues that Rule 63.02(1) permits the court to stay an interlocutory or final order “on such terms as are just.”
[6] I note that the City was prepared to pay the costs to Mr. Bodnar on the condition that the funds be held in trust pending the disposition of the leave application. I also note that this motion could have been moot but for the fact that the leave material lay dormant in the file in the Registrar’s Office and has not yet been forwarded to a judge for review. I also note the apparent animosity between the parties with the barricading of Mr. Bodnar’s property by the City within days of my decision.
[7] While the City has led little evidence to satisfy the three-part test outlined in RJR – MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, I conclude that it is appropriate to stay the enforcement of my cost order pending disposition of the application for leave to appeal. I acknowledge that the failure to address the stay request made by the City in the written cost submissions could be interpreted in the manner suggested by counsel for Mr. Bodnar. However, that interpretation is not consistent with the practical realities of appeals and costs of motions under appeal. Further, the failure to accept the City’s offer to pay costs on trust conditions was not reasonable in the circumstances.
[8] Accordingly, the City’s motion for a temporary stay of enforcement of my cost order is granted.
[9] I received cost submissions from counsel prior to hearing argument. In the circumstances, the City shall have its costs fixed in the amount of $2500 plus HST but those costs are not payable by Mr. Bodnar until a decision on the application for leave to appeal is released.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: January 30, 2017
CITATION: Bodnar v. Thunder Bay (City), 2017 ONSC 750
COURT FILE NO.: CV-12-0189
DATE: 2017-01-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Ian Bodnar
Respondent
- and -
The Corporation of the City of Thunder Bay
Applicant
DECISION ON MOTION
Newton J.
Released: January 30, 2017
/sab