Court File and Parties

Court File No.: 72/11 Date: 20200521 Superior Court of Justice - Ontario

Re: The Corporation of the City of Kawartha Lakes, Plaintiff - and - Wayne Gendron, Liana Gendron, and others, Defendants

Before: S.T. Bale J.

Counsel: Christine Carter, for the plaintiff Martin Forget, for Wayne Gendron and Liana Gendron Ryan McConaghy, for TD Bank

Heard: In writing.

Endorsement

[1] Wayne and Liana Gendron (“Gendron”), the successful parties on their motion for an interlocutory injunction, request their costs of the motion fixed in the sum of $22,302.40 on a substantial indemnity basis, or in the alternative, $16,895.92 on partial indemnity basis. The Toronto-Dominion Bank, a non-party, also requests costs. City of Kawartha Lakes, the unsuccessful party, resists the costs claimed by both Gendron and TD.

[2] Kawartha argues that the motion would not have been necessary had Gendron indicated, in October 2019, that he was seeking an extension of the injunction granted by Sosna J., until the City’s bar motion was heard. The City says that they would not have agreed to such an extension, and the Divisional Court appeal would have been argued. However, there would have been nothing preventing Gendron from withdrawing his appeal, and a motion to extend the injunction might well have been successful.

[3] Kawartha argues that the motion was not necessary, because in an email dated January 30, 2020, the City indicated that the sale of the property would not likely take place until June 2020. However, “not likely take place” and “not take place” are two different things. If they were the same, there would have been no reason for the City to oppose Gendron’s motion.

[4] Kawartha argues that the motion would not have been necessary had Gendron satisfied its lien. In making that argument, the City appears to be saying, “Since you are going to lose in the end, you should have paid the lien, and not brought the motion.” However, that argument could be made by every unsuccessful party and ignores the fact that, as a general rule, the costs of a motion follow the event.

[5] Kawartha argues, in the alternative, that the costs of the motion should be reserved to the motion judge hearing its bar motion, or in the further alternative, that any costs ordered be payable following the disposition of the bar motion.

[6] However, rule 57.03 of the Rules of Civil Procedure provides that the costs of a motion be fixed and made payable within 30 days, unless the court is satisfied that a different order would be more just. In this case, I see no reason to depart from the usual order. In deciding the motion, I found the City’s position to be without merit. The relief requested was only that enforcement of the City’s lien be delayed for a period of approximately 12 weeks. In my view, the City ought not to have opposed the motion.

[7] In requesting substantial indemnity costs, Gendron argues that Kawartha’s conduct in relation to the motion is part of a long history of egregious conduct demonstrating an “inexplicable and continued obsession with taking [his] house to enforce [its] lien.” However, while this “long history” may be relevant to the final disposition of the costs of the action, I do not find the City’s opposition to this motion to have been so egregious as to mandate substantial indemnity costs.

[8] In making its submissions, Kawartha did not comment on the quantum of costs – perhaps because the amount asked is entirely reasonable. Gendron’s costs will therefore be fixed at $16,895.92, inclusive of disbursements and GST.

[9] I see no basis for an award of costs in favour of TD. It retained counsel to advise it in relation to the priority of the Kawartha lien over its mortgages. That priority is a function of s. 100.1(5) of the Environmental Protection Act and is not in issue in this action. TD is not a party nor did it seek leave to intervene in the action or on the motion. Its counsel’s attendance at the hearing added nothing to the argument. It was a watching brief, for which it is not entitled to costs.

“S.T. Bale J.” Date: May 21, 2020