COURT FILE NO.: 13-58154
DATE: 2019/09/20
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MICHAEL ERLAND, Plaintiff
AND:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CITY OF OTTAWA, R.W. TOMLINSON LTD., RIDEAU VALLEY CONSERVATION AUTHORITY, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Joseph W.L. Griffiths, for the Plaintiff
Daniel Mayer, for the Defendant, Her Majesty the Queen in Right of Ontario
Mathieu Charron, for the Defendant, City of Ottawa
Trevor J. Buckley, for the Defendant R.W. Tomlinson
Gregory Banks, for the Defendant, Rideau Valley Conservation
HEARD: In Writing
Costs endorsement
[1] This decision deals with the costs attendant on the motion to extend the time for setting the action down for trial[^1] and the subsequent dismissal of the action. The decision was the subject of an unsuccessful appeal[^2] but I am reminded by counsel that I had not dealt with the costs.
[2] I received written costs submissions. Only Tomlinson and the plaintiff participated in the motion. I must also deal with the costs of the action dismissed under Rule 48.14 and covered by Rule 24.05.1 (1).[^3]
[3] Dealing firstly with the motion, Tomlinson was successful and is entitled to costs. I fix those costs at $1,500.00 on a partial indemnity scale. None of the other defendants participated.
[4] Costs of the action are more complex. The action continued for many years but along the way there were motions and costs awards. It is important not to award costs for steps that have already been the subject of a costs award. In addition each of the defendants stood in different circumstances and pursued different litigation strategies. I agree with the submissions by counsel for Tomlinson that as a private sector defendant whose apparently lawful operations (licenced by the province) would have been critically impacted, Tomlinson had the most to lose and a robust defence was justified.
[5] Access to justice is also important. Every citizen has the right to bring disputes before the court and for those whose operations may adversely affect their neighbours, responding to litigation is to some extent a cost of doing business. On the other hand, launching litigation carries with it significant duties and responsibilities. One of those is to bring the matter to conclusion within a reasonable period of time. Another is the obligation to pay costs if the litigation is unsuccessful. I cannot accept the submission of counsel for the plaintiff that there should be no costs.
[6] It does not follow that all of the costs claimed are reasonable nor that costs should be awarded on a substantial indemnity scale. I certainly cannot fathom how over $18,000 in photocopy costs can be justified and I agree that travel costs incurred because the defendant elected to use Toronto counsel should not all be visited on the plaintiff. But there is no doubt that by pursuing this litigation the plaintiff imposed very significant defence costs on Tomlinson and on the other defendants. Proportionality and reasonableness are moderating factors but the principle of indemnity remains important.
[7] Tomlinson incurred the highest costs in defending the action followed by the province and the conservation authority. The city incurred lower costs than the other defendants as it played a more peripheral role in the defence and used its own in-house resources. I do not agree that the city’s request for costs should be regarded as the measurement for what is reasonable. The city’s request was modest because it played a more modest role. Tomlinson bore the lion’s share of the defence costs and is entitled to a higher costs award.
[8] I have reviewed the written submissions of each of the parties along with the costs outlines, bills of costs and other supporting documents. Despite the nature of the litigation and the significant expense incurred in defending against it, this is not a case for substantial indemnity costs.
[9] In conclusion, costs of the action are awarded as follows:
a. In favour of R.W. Tomlinson, costs on a partial indemnity scale fixed at $75,000.00 inclusive of fees, disbursements and HST. To this must be added the costs of the motion for a total of $76,500.00.
b. In favour of Rideau Valley Conservation Authority and Her Majesty the Queen in Right of Ontario, costs on a partial indemnity scale fixed at $15,000.00 each (also inclusive of fees, disbursements and HST)
c. In favour of City of Ottawa, costs fixed at $8,000.00 inclusive on the same scale.
Date: September 20, 2019
Mr. Justice C. MacLeod
COURT FILE NO.: 13-58154
DATE: 2019/09/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MICHAEL ERLAND, Plaintiff
AND:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CITY OF OTTAWA, R.W. TOMLINSON LTD., RIDEAU VALLEY CONSERVATION AUTHORITY, Defendants
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Joseph W.L. Griffiths, for the Plaintiff
Daniel Mayer, for the Defendant, Her Majesty the Queen in Right of Ontario
Mathieu Charron, for the Defendant, City of Ottawa
Trevor J. Buckley, for the Defendant R.W. Tomlinson
Gregory Banks, for the Defendant, Rideau Valley Conservation
COSTS ENDORSEMENT
Mr. Justice Calum MacLeod
Released: September 20, 2019
[^1]: 2019 ONSC 462
[^2]: 2019 ONCA 689
[^3]: See rule 48.15 (9)