COURT FILE NO.: 215/17
DATE: 20/09/2018
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SAVE PICTON BAY
Applicant
– and –
THE CORPORATION OF PRINCE EDWARD COUNTY and 1213427 ONTARIO CORPORATION o/a PICTON TERMINALS
Respondents
Eric K. Gillespie, for the Applicant
David W. DeMille/ Samantha Foster, for the Respondent, The Corporation of Prince Edward County
Tony E. Fleming, for the Respondent, Picton Terminals
HEARD in Belleville: April 16, 2018
Reasons Released June 18, 2018
Written Submissions on Costs
tausendfreund, J.
reasons
Overview
[1] The Applicant (“Picton Bay” and/or “the Applicant”) is a not-for-profit corporation representing rate payers of the Corporation of Prince Edward County (“the County”). This Application required the interpretation of a municipal zoning By-law. The property in question is a deep port facility for lake freighters. It is used by the owner, the Respondent (“Picton Terminals”) for trans-shipment purposes by lake freighters to and from the property.
[2] The Applicant stated that this trans-shipment operation contravened the zoning By-law of the County for this property. The Respondents opposed this interpretation. They state that it is a legal non-conforming use.
[3] I found on the evidence that:
• The property had been used for trans-shipment purposes from the 1950’s to the present;
• The general historic use had not changed;
• The common denominator of goods shipped remained bulk products;
• While the trans-shipment infrastructure from the 1950’s remained, it had been upgraded and enlarged;
• Although the trans-shipment operation had intensified over the years, the change of scale or intensity was not a fundamental change in the nature of the use, but a reasonable expansion of the earlier activities which, for that reason, will remain entitled to protection under the non-conforming use;
• Any portable industrial equipment stored and aggregate material stockpiled on that part of the property zoned RU1, was not permitted under the current By-law and must be removed.
General Costs Principles
[4] The award of costs is governed by Section 131(1) of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43 and Rule 57.01 of the Rules of Civil Procedure, R.R.O.1990, Reg. 194.
[5] Generally, “costs follow the event, premised upon a…loser pay, costs approach…awarded on a partial indemnity basis [absent exceptional circumstances and/or Rule 49 Offers]…and payable…within 30 days”.[^1]
[6] In Anderson v. St. Jude Medical Inc. (2006), 264 D.L.R. (4557), the Divisional Court set out several principles to be considered in making an award of costs:
(a) 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 R.57.01 (1).
(b) A consideration of experience, rates charged and hours spent is appropriate. However, it is subject to the overriding principle of reasonableness, as applied to the factual matrix of the particular case…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.
(c) The court should seek to avoid inconsistency with comparable awards in other cases.
(d) The court should seek to balance the indemnity principle with the fundamental objective of access to justice.
[7] The parties were unable to resolve the matter of costs. Each submitted a Bill of Costs on a partial indemnity basis as follows:
Applicant - $75,353.18
Picton Terminals - $57,698.35
The County - $47,227.84
[8] The Applicant does not request costs in this Application. It has limited its submissions to a challenge of the costs claimed by each of the two Respondents which I will now address.
Picton Bay
[9] I found on the evidence that:
• The property had been used for trans-shipment purposes from the 1950’s to the present;
• The general historic use had not changed;
• The common denominator remained trans-shipment of bulk products.
[10] Picton Terminals state and I accept that the central issue of this Application addressed the legal rights of Picton Terminals to continue to operate its business of trans-shipment on this property. It was a matter of critical importance to this Respondent.
[11] As already noted, I found that the general historic use of the property had not changed and that the trans-shipment activities on this property remained entitled to protection under the non-conforming use principle. That said, the Applicant had partial success, based on my finding that the industrial materials stored on that part of the property zoned RU1 must be removed. However, that represented not more than 20% of the issues in this Application.
[12] I assess the partial indemnity costs of Picton Terminals at $50,000 all in, less 20%. This net amount to which Picton Terminals is entitled from the Applicant I find to be $40,000.
The County
[13] The main issue in this Application, including most of the evidence and submissions, dealt with the use of the lands by Picton Terminals. The essential question was whether the trans-shipment use was permitted as a non-conforming use. The proceeding was complex. The determination of the application of a legal non-conforming use required expert planning evidence, historical background and expert environmental evidence. It was an issue of great public importance.
[14] The contribution by the County in terms of presenting the historical perspective of the various zoning By-laws affecting this property was of substantial assistance. That said, it should be noted that the zoning uncertainty leading to the launch of this Application appears to have been caused by a zoning oversight in 2006. The former Township of Hallowell (“Hallowell”) passed a By-law in 1977 designating this property as a “special exception zone”. This zoning By-law provided that the property may be used for no purpose other than “an existing ore storage and a trans-shipment operation”.
[15] In 1988, Hallowell passed By-law 983 which replaced its 1977 zoning By-law. Hallowell continued to permit the use of this site as a trans-shipment facility. This was so, despite the fact that this site by 1988 was no longer used for iron ore storage and had not been so used since 1978. The port facilities, however, had remained in place and the site had continued to be used for trans-shipment purposes. If Hallowell had intended to eliminate the trans-shipment use in 1988, it could have simply removed the reference to the “special exception zone” which it granted in 1977. It did not.
[16] In 1993, the County adopted its Official Plan by which it designated the property as “industrial”. The Official Plan noted that the integrity of major transportation corridors and facilities that move goods, services and people in the County, such as this deep water port, should be protected and promoted.
[17] In 2006, the County, as a then amalgamated municipality, passed its first comprehensive zoning By-law. It zoned this site as “Extractive Industrial”, which did not include an explicit permission for trans-shipment use.
[18] Both Hallowell, and later the County, took the apparent position that the trans-shipment activity on this site was a permissible use under the applicable zoning By-law. For reasons that were not explained, when the County, as an amalgamated municipality, passed its first comprehensive zoning By-law in 2006, it failed to recognize and specifically include trans-shipment as a permitted use for this site. That failure generated an uncertainty which resulted in the filing and eventual hearing of this Application.
[19] Additionally, I accept the position of Picton Bay that this Application raised “issues of great public importance”. I find that Picton Bay in this Application is a “public interest litigant”: see Citizens for Riverdale Hospital v. Bridgepoint Health Services and City of Toronto, [2007] 1009 (Divisional Court) at paras. 9, 12 and 14.
[20] For these reasons, I find that no costs are to be awarded to the County on this Application.
Tausendfreund, J.
Released: September 20, 2018
Save Picton Bay v. The Corporation of Prince Edward County, 2018 ONSC 5565
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAVE PICTON BAY
Applicant
– and –
THE CORPORATION OF PRINCE EDWARD COUNTY and 1213427 ONTARIO CORPORATION o/a PICTON TERMINALS
Respondents
REASONS
Tausendfreund, J
Released: September 20, 2018
[^1]: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 at para. 5