Court File and Parties

COURT FILE NO.: CV-18-597239 DATE: 20201112 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2185863 ONTARIO LIMITED, Applicant AND: CITY OF TORONTO, Respondent

BEFORE: Paul B. Schabas J.

COUNSEL: Alan Dryer and Orly Kahane-Rapport for the Applicant Georgia Tanner for the Respondent

HEARD: September 29, 2020

costs ENDORSEMENT

[1] I released my judgment dismissing this application on October 23, 2020: 2185863 Ontario Limited v. City of Toronto, 2020 ONSC 6480. I have now received costs submissions in writing.

[2] The Respondent seeks $20,000 in fees plus disbursements of $613.00.60. There is no tax indicated, as the Respondent was represented by a counsel who is a salaried employee of the City.

[3] The Applicant submits that there should be no award of costs or, alternatively, "a modest costs award in the range of $5,000."

[4] Under s. 131 of the Courts of Justice Act, the Court has a broad discretion in determining costs. Rule 57.01 sets out relevant factors to consider. One must also have regard to the principle of proportionality and balance the indemnity principle with the fundamental objective of access to justice. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay, rather than an amount fixed by actual costs incurred by the successful party: Boucher v. Public Accountants Counsel for Ontario, 2004 CanLII 14579 (Ont. C.A.).

[5] I disagree with the Applicant's submission that this case involved issues of public importance and of "first impression" regarding the City's policy to remove third party signs, such that there should be no order as to costs. While the order to remove the sign may have resulted from the policy and the increased vigilance of the City in ensuring that any existing third-party rooftop signs were legally erected, the legal issues were not novel nor did they transcend the case. The interpretation and application of the by-laws to the facts of this case was straightforward.

[6] In short, this was simply an application by the Applicant to preserve a sign that had been illegally installed on the roof which provided considerable income to the Applicant. In these circumstances, the Applicant ought reasonably to have expected to be liable for costs if unsuccessful and there is no reason to depart from the principle of awarding costs to the successful party.

[7] In my view the sum requested by the City is reasonable and appropriate. This was hard-fought litigation, with considerable evidence including requiring cross-examinations. The Applicant raised many legal issues, to which the City was obligated to respond, and the Applicant was unsuccessful on all of them. The City's Outline of Costs indicates that it could have sought a much higher sum, but reduced its claim considerably – a reduction that in my view is reasonable and appropriate having regard to the nature of the case and the work required.

[8] Accordingly, I award costs to the City in the total amount of $20,613.60.

Paul B. Schabas J.

Date: November 12, 2020.