Court File and Parties
COURT FILE NO.: CV-19-941
DATE: 2021-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KERRI SCHUETTEL & ROLF SCHUETTEL
- and –
THE CORPORATION OF THE TOWN OF MINTO & TERRY KUIPERS, C.B.O. FOR THE TOWN OF MINTO
- and –
QUALITY DEVELOPMENTS INC.
Counsel:
Steven O’Melia, for the Applicants
Michael Van Bodegom, for the Respondents
Kevin Thompson, for the Intervenor
HEARD: In Writing
The Honourable Justice Catrina D. Braid
COSTS ENDORSEMENT
I. OVERVIEW
[1] Kerri and Rolf Schuettel commenced proceedings to challenge the issuance of building permits, seeking an order preventing further permits from being issued, and other related relief. For the reasons set out in Schuettel et al. v. Town of Minto et al., 2021 ONSC 4716, I ordered the Town to take steps with respect to a small piece of municipally owned land and otherwise dismissed the application and the motion. The facts are set out in detail in that decision and will not be repeated here.
[2] The Schuettels settled costs with the intervenor developer, Quality Developments Inc. In these reasons, I shall deal solely with the issue of costs between the Schuettels and the respondents, the Town of Minto and its Chief Building Officer (“CBO”).
[3] For the reasons that follow, I find that a fair and reasonable award of costs payable by the Schuettels to the respondents is $30,000.
II. ANALYSIS
A. Are the Respondents Entitled to Costs?
[4] The Schuettels argue that there has been a mixed result and that the parties should bear their own costs. I do not accept this submission.
[5] In my ruling on the substantive issues, I found that the Schuettels should have brought an appeal of the CBO’s decision to issue the permits, pursuant to s. 25 of the Building Code Act (“BCA”), and that the Rule 14 application was improperly constituted. I declined to grant leave to amend the application to add a BCA appeal because it was well past the limitation period, the Schuettels did not explain the delay, and they did not demonstrate that the appeal had merit. I also declined to grant a stay of construction because the Schuettels had not met the test for an injunction.
[6] I made an order that the Town prevent the developer from using a small strip of municipally-owned land. The motion and application were otherwise dismissed.
[7] Although the Schuettels were successful on this narrow issue, minimal time and resources were expended on this uncomplicated matter. The Schuettels did not even seek this relief in their notice of application, but the Town did not object to the court providing its interpretation and direction on the issue. This was not a mixed result, but rather the Schuettels were successful on a minor issue.
[8] The respondents were successful on the majority of the issues in the litigation and are entitled to costs.
B. What Is the Appropriate Quantum of Costs to be Paid?
[9] The respondents seek costs of $59,654.84 on a substantial indemnity basis or $40,546.65 on a partial indemnity basis. The Schuettels argue that the quantum of costs sought by the respondents is excessive. However, they did not provide their own costs outline.
[10] Although it is preferable, there is no requirement for the losing party, who is not seeking costs, to file a bill of costs. Not filing a bill of costs is a factor that may be taken into account when considering the reasonable expectations of the losing party: see Smith Estate v. Rotstein, 2011 ONCA 491, 106 O.R. (3d) 161, leave to appeal refused, [2011] S.C.C.A. No. 441.
[11] If the unsuccessful party wishes to argue that the costs sought are excessive, they should file their own bill of costs. This provides a basis for determining whether the amount of time incurred was reasonably within the expectation of the unsuccessful party. In the absence of a costs outline from the Schuettels, it is difficult to gauge what their reasonable expectations were, in respect of costs, if unsuccessful. The Schuettels must have known there were significant costs risks going into this litigation, especially given the complexity of the numerous issues raised. The costs claimed by the respondents were reasonably within the expectation of the applicants.
[12] Further, I do not accept the Schuettels’ submission that this was a novel case. The ruling on the substantive issues cites several authorities in which courts have held that an application is not the proper process in which to challenge a building permit.
[13] In their submissions, the Schuettels state “it was impossible for the application to be heard in a timely manner. While the Courts were closed, residential construction continued unabated and undermined the basis of the application.” However, court operations never completely closed to urgent matters, including injunctions. The Schuettels cannot blame the Courts when they only advanced the motion for a stay of construction sixteen months after the original application was commenced.
[14] The Schuettels also describe how they are a young, single-income family. However, there is no information regarding their income, assets, or ability to pay a costs award.
[15] In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Those factors include the principle of indemnity, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation. I have considered these factors.
[16] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount to be paid, rather than any exact measure of the actual costs to the successful litigant.
[17] In support of the motion, the parties filed factums and books of authorities. The motion was heard over two days. The factual and legal issues were of moderate complexity. The issues were of high importance to the parties. The two most important factors are the principle of indemnity and the amount of costs that the unsuccessful party could reasonably have expected to pay in the event they were unsuccessful.
[18] I find that a fair and reasonable award of costs to the respondents is $30,000.
III. CONCLUSION
[19] This court orders that the applicants shall pay costs to the respondents in the amount of $30,000, inclusive of HST and disbursements.
______________________
Braid, J.
Released: December 7, 2021
COURT FILE NO.: CV-19-941
DATE: 2021-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KERRI SCHUETTEL & ROLF SCHUETTEL
- and –
THE CORPORATION OF THE TOWN OF MINTO & TERRY KUIPERS, C.B.O. FOR THE TOWN OF MINTO
- and –
QUALITY DEVELOPMENTS INC.
pondent
COSTS ENDORSEMENT
CDB
Released: December 7, 2021