Court File and Parties
Court File No.: CV-19-631561 & CV-19-631562 Date: 2020-04-09 Superior Court of Justice - Ontario
Re: The Corporation of the Town of Oakville, Applicant And: Clublink Corporation ULC and Clublink Holdings Limited, Respondents
Before: Schabas J.
Counsel: T. Curry, S. Rollwagen, D. Knoke and N. Chandra, Counsel for the Applicant E. Cherniak, Q.C., M. Flowers, C. Kuehl and L. Woods, Counsel for the Respondents
Heard: January 23, 2020
Costs Endorsement
[1] On February 10, 2020, I struck out these two applications brought by the Town in Reasons released that day: The Corporation of the Town of Oakville v. Clublink Corporation ULC et al., 2020 ONSC 887. This decision arises from hard fought litigation between the parties over the proposed redevelopment of the famous Glen Abbey golf course in Oakville. There have been many court battles of which at least as far as I know, this is the latest. In several of the previous cases, I understand the parties were able to agree on costs. Not so here, where they are very far apart.
[2] Clublink was successful and seeks costs of $137,903.70 on a partial indemnity basis. The Town objects, submitting that there should be no costs or, alternatively, that an appropriate award on a partial indemnity basis would be $30,000.00. Both amounts include disbursements and HST.
[3] In support of its argument for no costs, the Town says that it would not have brought its “counter-applications” had Clublink not commenced its own applications and that the Town’s counter-applications reflected a “good faith effort to answer important questions”. The Town also says that Clublink ought to have raised the issues in its applications in prior court proceedings, and that Clublink should be denied costs for bringing multiple proceedings for “tactical reasons.”
[4] However, the Town’s counter-applications were only commenced in anticipation of Clublink’s move to abandon its applications, in an attempt by the Town to preserve the issues before the courts rather than have the issues decided by the LPAT. Further, the Town must have anticipated that Clublink would bring the motion to strike the counter-applications, and knew that costs would follow if, as occurred, the Town was unsuccessful. As to multiplicity of proceedings, I would simply note that the parties are battling on many fronts, and that in this context I found, at para. 45 of my Reasons, that it was the Town’s counter-applications that “create an unnecessary multiplicity of proceedings.” Accordingly, I see no reason to depart from the normal rule that costs should follow the event.
[5] Turning to quantum, I agree with the Town that the costs sought by Clublink are excessive. Clublink cites the previous applications between the parties heard by Justice Morgan, in which the parties agreed on costs amounts even higher than sought here - $250,000 and $185,000. However, those applications were very different. They involved detailed and extensive factual records, including many affidavits and technical reports, with many days of cross-examinations, and each application was heard over two full days. In contrast, the motions before me were straightforward, involving a limited record largely consisting of material from previous court and LPAT proceedings between the parties, with little new evidence and only one brief cross-examination lasting about 10 minutes. Indeed, the Town points out that on some other preliminary motions the parties had agreed to costs in much smaller amounts - $10,000 and $16,500.
[6] None of these comparisons are very helpful. They all involved agreements on costs, which may be informed by many other factors of which the Court is unaware. Each case, as is often said, turns on its own facts, and I must consider this case based on the principles and factors that judges must have regard to in awarding costs. Consequently, my overall objective is to fix an amount for costs that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. Pursuant to the Courts of Justice Act, s. 131(1), the Court has a broad discretion when determining the issue of costs, and in exercising that discretion Rule 57.01(1) sets out factors to be considered by me. As well, I must have regard to the principle of proportionality in fixing an amount that balances the indemnity principle with the objective of promoting access to justice.
[7] The Town’s applications raised important issues between the parties; however, the motion to strike did not involve those issues. Rather, the matter, which I was called upon to decide, addressed what might be described as a procedural skirmish – one of many, no doubt – between the parties.
[8] The parties agree that the matter before me was not factually or legally complex. It was effectively a pleadings motion, which I agreed to hear as a preliminary matter, recognizing that if the counter-applications were struck the parties would avoid incurring the significant costs associated with litigating the applications themselves, which might see costs in the same ranges as those before Morgan J. Although the Town sought to have the pleadings issue dealt with at the hearing of the full applications, that did not happen and its position on that is irrelevant now. There were, in my view, no improper, vexatious or unnecessary steps that warrant consideration here. Although I found the counter-applications to be an “abuse of process”, that is a legal finding relating to the prevention of a multiplicity of proceedings, which is different from steps taken in response to the motion to strike. Although Clublink notes my observation that the Town “was attempting to drag Clublink into a dispute before the courts”, it is not for me to attempt to unravel all the rights and wrongs of the positions taken in the many legal battles between the parties in order to punish one party or another with elevated costs. I am simply not in a position to do so, nor would it necessarily be appropriate in any event.
[9] Nevertheless, Clublink was wholly successful on the motion and is entitled to costs, and so it falls to me to assess whether the amount of costs sought is reasonable for the Town to pay on what was a relatively straightforward motion, with a limited evidentiary record that was easily put together given all the ongoing litigation between the parties and heard on one day.
[10] Clublink, in defence of its six-figure claim, notes that both sides have many counsel, including multiple senior counsel involved, and that the Town should expect to be required to indemnify Clublink for that involvement. I do not disagree, but caution that there must be limits to costs, even when the parties, as here, appear to have deep pockets.
[11] This, as I have said, was a motion to strike a pleading. It raised interesting, but not particularly novel or complex, issues. In other circumstances, one would expect parties to be arguing over costs for such a motion ranging from perhaps $10,000 to $50,000 on a partial indemnity basis, not a sum in excess of $100,000. See for example, two cases on the higher end of that range: Christie v. Trent University, 2012 ONSC 6272, which awarded partial indemnity costs of $35,000 for a two-day hearing, and Marin v. Office of the Ombudsman, 2017 ONSC 3333, which awarded $49,983.67 on a partial indemnity basis, inclusive of costs and HST.
[12] Nevertheless, Christie and Marin are not directly applicable to this case, as I should not ignore the context in which this matter has arisen, and the reasonable expectation of both parties that everything the parties do will result in considerable legal fees as both sides have engaged, and use, teams of lawyers on all issues. In this context, I see little point in engaging in a detailed review of the costs outline. Rather, I recognize that the fixing of costs is not a science and that, as I stated above, the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. Accordingly, having regard to the factors in Rule 57.01 and the principles stated above, I conclude that, in the particular circumstances of this case, costs on a partial indemnity basis should be fixed at $65,000, inclusive of disbursements and HST.