Court File and Parties

COURT FILE NO.: CV-20-78 DATE: April 14, 2022 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner) v. Andrea Emma Budarick

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: J. Paul R. Cassan, Counsel for the Applicant Angela Chaisson, Counsel for the Respondent

DATE HEARD: In writing

Costs Endorsement

James J

[1] This is a costs endorsement following a successful application under the Municipal Conflict of Interest Act (“MCIA”).

[2] As a general rule, a successful party is entitled to recover a reasonable allowance for costs from an unsuccessful party. The respondent says that success was divided because “the applicant alleged that the respondent breached the MCIA at three separate meetings and was successful on two of those allegations.” In my view the applicant was substantially successful.

[3] Costs awards can vary in increasing amounts from partial indemnity, to substantial indemnity, to full indemnity. Costs orders on a partial indemnity basis are the norm; substantial indemnity and full indemnity costs tend to be exceptional.

[4] The applicant claims costs on a partial indemnity basis of $40,993.50 or $55,098.50 on a substantial indemnity basis.

[5] The respondent says that the time spent on the case by the applicant’s counsel was excessive. Also, the decision by the applicant’s counsel to engage junior counsel for an additional $8,000.00 should not be visited upon the respondent.

[6] The respondent points to her own costs for comparison purposes and notes that her lawyer’s partial indemnity costs are less than one half the amount claimed by the applicant ($19,746.00 vs. $40,993.50).

[7] The applicant’s counsel has not calculated the partial indemnity costs correctly. Assuming $395.00 per hour is the correct actual rate, the typical partial indemnity rate in the East Region would be 60% of this amount or $237.00 per hour, not $295.00 per hour. (See also the definition of substantial indemnity costs in rule 1.03 of the Rules of Civil Procedure).

[8] The issues in the application were important and moderately complex. These considerations tend to increase the amount of costs to be awarded.

[9] Sometimes cases that have a public law aspect to them, that involve local government issues or that raise issues of interest to the electorate, are resolved on the basis of a nominal or no costs award due to the risk of stifling free and open discussion of issues that are important to the community.

[10] I do not regard this case as one which warrants a nominal costs order. The respondent’s conduct was intentional and persistent when it would have been prudent not to cling to an untenable position. The result is that the applicant incurred additional costs.

[11] The factors applicable to assessing costs are set out in Rule 57 of the Rules of Civil Procedure. I have considered them, but individual cases often call for particular emphasis on certain factors in priority to others.

[12] In this case my view is that the costs issue turns primarily on the question of what is a reasonable amount that an unsuccessful party in the respondent’s position would reasonably expect to pay? I conclude that the respondent would have known that the costs could be substantial, especially considering her legal training but would be less than the amount claimed by the applicant.

[13] In all the circumstances, I find that the applicant is entitled to a payment for costs from the respondent of $25,000.00 for fees plus applicable HST and disbursements of $2,125.42, HST included.

Justice M. James DATE: April 14, 2022