COURT FILE NO.: CV-19-00629562-0000
DATE: 20210407
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE PLANNING ACT, R.S.O. 1990, c. P.13
BETWEEN:
STEPHEN BRUCE FORBES Applicant
- and -
THE CORPORATION OF THE TOWN OF CALEDON Respondent
Counsel: Bernie Romano, Saveria Romano and Jordan Nussbaum for the Applicant Melissa Winch, Raivo Uukkivi and Marisa Keating for the Respondent
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] In this Application, the Applicant Stephen Bruce Forbes sued the Respondent the Corporation of the Town of Caledon for the following relief:
a. An Order declaring that Ontario Court of Appeal decision Forbes v. Caledon (Town) shall enure to the benefit of the transferees, lessees, invitees, or tenants with respect to the lands municipally described as 8576 Mayfield Road, Bolton, Ontario and legally described as Part I, Concession 6, in the Township of Albion, in the Town of Caledon, and that therefore, the following non-conforming uses will continue with respect to the Subject Property:
i. For the outdoor storage of vehicles, machinery, and equipment;
ii. For business operation;
iii. For the storage of heavy trucks;
iv. For such further and other uses as may be ancillary to the business use of the subject lands set out in paragraphs (i) to (iii) above.
b. An Order affirming that, pursuant to the Ontario Court of Appeal decision Forbes v. Caledon (Town), the Town of Caledon continues to be restrained from interfering with the said uses of the Subject Property by Mr. Forbes or his transferees, lessees, invitees or tenants;
c. A declaration that the legal non-conforming use of the Subject Property shall enure to the benefit of Mr. Forbes and his successors, assignees, and transferees in title;
d. An Order entitling the Applicant to register on title to the Subject Property: (a) the judgment of Price J. dated February 6, 2009 in Court File No. CV-07-03562; (b) the Endorsement of Gillese, Juriansz and LaForme JJ.A. of the Ontario Court of Appeal dated August 5, 2009; (c) and the judgment in this Application.
[2] I make the following Order:[^1]
- IT IS ORDERED AND DECLARED THAT the owners, transferees, lessees, invitees, or tenants of the lands municipally described as 8576 Mayfield Road, Bolton, Ontario and legally described as Part I, Concession 6, in the Township of Albion, in the Town of Caledon (the “subject lands”) are not prohibited from using the subject lands for the following uses so long as the uses continue:
(a) the outdoor storage of vehicles, machinery, and equipment, including the temporary storage and impounding of motor vehicles taken from a collision scene or otherwise towed or conveyed and awaiting repair or demolition, retrieval, or disposal;
(b) business operation;
(c) the storage of heavy trucks;
(d) such further and other uses as may be ancillary to the business use of the subject lands set out in (a) to (c) above.
- IT IS FURTHER ORDERED AND ADJUDGED THAT the owners, transferees, lessees, invitees, or tenants of the subject lands have not been prohibited from using the subject lands for the aforesaid uses from February 6, 2009 to the date of this Order.
[3] Mr. Forbes submits that he was the substantially successful party on the motion, that he made a reasonable offer to settle before the motion was argued, and that costs to him should follow in accordance with the factors set out in Rule 57.01 of the Rules of Civil Procedure. He requests costs on a partial indemnity basis of $60,186.30.
[4] The Town submits that it was necessary and reasonable for it to defend the motion and that it was substantially successful in resisting Mr. Forbes’ Application. It submits that given the divided success on issues that were of importance to each party, the appropriate outcome is that each party should bear their own costs. In the alternative, the Town submits that the appropriate award in the circumstances of this case is an award to Mr. Forbes of $20,000 all inclusive.
[5] I agree with the Town’s alternative submission save that having regard to the factors set out in Rule 57.01 and a review of Mr. Forbes’ Bill of Costs, the appropriate award is $38,000, all inclusive.
[6] Courts are generally reluctant to make distributive costs awards on an issue-by-issue basis, but in the immediate case, while Mr. Forbes was overall successful in his request for a declaration about the continuance of the non-confirming use, his injunction Application was overreaching, and the Town was successful in resisting the overreaching aspects of Mr. Forbes’ Application. Thus, there was genuinely divided success on the issues that mattered to each side.
[7] Had Mr. Forbes not overreached and not prompted the vigorous counterattack of the Town, it is doubtful that his legal costs would have been as high as they turned out to be.
[8] Both parties made settlement offers that neutralized each other as factors in the exercise of the court’s discretion with respect to costs.
[9] There was no dispute that the appropriate scale of costs is a partial indemnity.
[10] The factual background and the legal issues were complex.
[11] Having regard to the normal factors set out in Rule 57.01 and treating Mr. Forbes as the successful party, and without considering the divided success, I would coincidentally have reached the decision that the appropriate award in the immediate case is $38,000, all inclusive.
[12] Order accordingly.
Perell, J.
Released: April 7, 2021
COURT FILE NO.: CV-19-00629562-0000
DATE: 20210407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEPHEN BRUCE FORBES Applicant
- and -
THE CORPORATION OF THE TOWN OF CALEDON Respondent
REASONS FOR DECISION – COSTS
PERELL J.
Released: April 7, 2021
[^1]: Forbes v. Caledon (Town of), 2021 ONSC 1442.