CITATION: WOODALL v. WHITCHURCH-STOUFFVILLE (TOWN), 2017 ONSC 7507

NEWMARKET COURT FILE NO.: CV-14-118824

DATE: 20171214

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kimberly Woodall, Applicant AND: The Corporation of the Town of Whitchurch-Stouffville, Respondent

BEFORE: THE HON. MR. JUSTICE G.M. MULLIGAN

COUNSEL: R. Andrew Biggart, counsel for Respondent Kimberly Woodall, self-represented

HEARD: In Writing

COSTS ENDORSEMENT

[1] This matter was commenced by the Applicant, Kimberly Woodall, who originally sought an Order setting aside and quashing a Vacate and Demolition Order issued by the Respondent, The Corporation of the Town of Whitchurch-Stouffville, on May 7, 2014. For reasons issued on September 11, 2017, the Respondent was successful in the two heads of relief sought by it; an order approving the original demolition order and an order finding Ms. Woodall in contempt.

[2] Both parties were invited to make submissions as to costs. Those submissions have now been received. The Applicant was self-represented for this hearing, but retained counsel to assist her with costs submissions.

Position of the Respondent

[3] The Respondent was entirely successful on this motion and seeks costs on a substantial indemnity basis. The costs sought are $27,790.90 broken down as follows:

Application: $15,647.25

Contempt motion: $11,465.65

Costs Submissions and Bill of Costs: $ 678.00

TOTAL: $27,790.00

[4] Included within that figure are the Respondent’s disbursements totalling approximately $2,750.00.

Positions of the Applicant

[5] The Applicant does not dispute the disbursements sought by the Respondent ($2,750.00), nor does she dispute the fact that costs are sought on a substantial indemnity basis, given the finding against her. The Applicant takes issue with what appear to be administrative charges included in the account and the combination of costs for the two sets of relief within one Bill of Costs. As the Applicant states in her written submissions “the awarding of costs for the contempt motion tends to have the effect of conflating the substantive relief and whatever penalty the court believes is appropriate in terms of the contempt relief itself.” The Applicant concludes by indicating the appropriate level of costs should be $15,000.00, inclusive of HST, plus the undisputed disbursements of $2,750.00 which would lead to $17,750.00.

[6] In its submissions the Respondent noted the finding of contempt against the Applicant and pointed out steps she took to delay or frustrate the proceedings and summarizes the matter by stating:

The Town, which is actually the taxpayers of the Town, should never have had to incur the costs of the Application or the Contempt Motion. This was an ill-founded Application. It is obvious that the subject structure must be demolished due to the issue of public safety. Further, the actual rates charged by this firm to the Town are well below even the partial indemnity rate commonly utilized under the Rule.

Analysis

[7] It is well settled that s.131 of the Courts of Justice Act, R.S.O. 1990, c. C 43 provides considerable judicial discretion on the issue of fixing of costs. Rule 57.01 of the Rules of Civil Procedure sets out various factors that the Court can consider in exercising this discretion.

[8] In Davies v. Clarington Municipality, 2009 ONCA 722, 2009 O.J. No. 4236, Epstein J.A. for the Court of Appeal of Ontario reviewed the issue of awarding of costs on an elevated scale. As she stated at paragraph 28:

This Court, following the principle established by the Supreme Court, has repeatedly said that elevated costs are warranted only in two circumstances. The first involves the operation of an offer to settle under Rule 49.10 where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behaviour worthy of sanction.

[9] There were no offers to settle in this case. I am satisfied that this one of those rare and exceptional cases where substantial indemnity costs ought to be awarded as claimed by the Respondent. Not only was the Applicant unsuccessful on this motion, she was found in contempt. I am satisfied that an award of costs of $27,790.90 for fees, disbursements and HST is fair and reasonable under the circumstances.

[10] Costs are payable by the Applicant to the Respondent forthwith, in the amount of $27,790.90.

Mulligan J.

DATE: December 14, 2017