ST CATHARINES COURT FILE NO.: CV-21-60367 DATE: 2022/04/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Corporation of the Town of Lincoln Applicant – and – Shire Corporation, Wessuc Inc., Shane VanVeen, Red Earth Heavy Equipment Sales and Mario Cascio Respondents

Counsel: D. Reiter and D. Muise, for the Applicant C. Neil, for Shire Corporation, Wessuc Inc., and Shane VanVeen No one appearing for Red Earth Heavy Equipment Sales and Mario Cascio

HEARD: March 18, 2022

THE HONOURABLE JUSTICE J. R. HENDERSON

REASONS FOR DECISION

INTRODUCTION

[1] The applicant, the Corporation of the Town of Lincoln (“the Town”), alleges that the respondents have violated the Town’s Bylaw 2020-64 (“the bylaw”) by contravening the conditions of a permit for importing fill and site alteration (“the permit”), by failing to comply with a stop work order, and by importing fill and engaging in site alteration without a permit at the property known as 3289 Frost Road, Beamsville, Ontario (“the property”).

[2] In this application the Town requests declarations as to the respondents’ violations of the bylaw. The Town also requests a permanent injunction pursuant to s. 440 of the Municipal Act that restrains the respondents from importing fill and/or otherwise engaging in any site alteration at the property.

[3] Shire Corporation is the owner of the property. Shane VanVeen (“VanVeen”) is the principal of Shire Corporation and Wessuc Inc. I will refer to these three respondents collectively as “the Shire respondents”.

[4] Mario Cascio (“Cascio”) is the principal of Red Earth Heavy Equipment Sales. I will refer to these two respondents collectively as “the Cascio respondents”.

[5] An interim injunction order restraining the respondents from importing fill and/or otherwise engaging in any site alteration at the property was granted in this application on September 21, 2021. The interim injunction motion was not argued; the order was granted on consent, although the consent of all of the respondents was not obtained until the morning of September 21, 2021.

[6] On the present return of the application, the Shire respondents do not contest the Town’s request for declarations and a permanent injunction. The Town and the Shire respondents have filed an agreed statement of facts in which the Shire respondents admit that they contravened the conditions of the permit, that they breached the stop work order, and that they imported fill onto the property after the permit had been revoked.

[7] The only remaining issue between the Town and the Shire respondents is the Town’s request for costs on a substantial indemnity scale. The Shire respondents acknowledge that the Town is entitled to a costs order against all of the respondents on a joint and several basis, but they dispute the scale and the quantum of costs requested by the Town. Further, the Shire respondents submit that responsibility for the Town’s costs should be apportioned in their favour as between the Shire respondents and the Cascio respondents.

[8] The Cascio respondents did not appear on the present return of the application. After the interim injunction was granted, Cascio failed to attend for his scheduled cross-examination on his affidavit. Thereafter, counsel for the Cascio respondents was removed from the record. The Cascio respondents have failed to appoint new counsel and Cascio has failed to file a Notice of Intention to Act in Person.

[9] Therefore, the following issues arise: i. Is the Town entitled to the declarations and the permanent injunction it seeks? ii. Is the Town entitled to its costs of this application, and if so, in what amount? iii. Should responsibility for the Town’s costs be apportioned as between the Shire respondents and the Cascio respondents?

BACKGROUND FACTS

[10] The bylaw governs the importation of fill and site alteration of property within the Town of Lincoln. Section 3.1 of the bylaw prohibits the importation of fill and site grade alteration unless a permit has been issued. A permit may contain conditions and terms. Section 8.5 of the bylaw prohibits contravention of the terms or conditions of a permit issued under the bylaw. Section 9.13 requires the permit holder to cease all work if the permit is revoked.

[11] Shire Corporation and Wessuc Inc. applied to the Town for a permit pursuant to the bylaw in August 2020. As part of the process, Shire Corporation and Wessuc Inc. were also required to apply for a permit from the Niagara Peninsula Conservation Authority (“NPCA”).

[12] The Town issued the permit for the importation of fill and site grade alteration of the property on February 2, 2021. The permit included a condition that limited the total amount of fill imported onto the property to 250 truckloads. The permit also incorporated a condition imposed by the NPCA that limited the total amount of fill imported onto the property to 8,817 cubic metres.

[13] The Shire respondents made arrangements for the Cascio respondents to dump truckloads of fill on the property. By June 2021, it was clear that the respondents were contravening the terms of the permit. VanVeen confirmed on his cross-examination that fill was being imported onto the property at the rate of approximately 200 truckloads per day. His evidence suggests that approximately 2,500 truckloads had been imported onto the property by June 8, 2021. Cascio deposed that approximately 1,000 truckloads had been imported onto the property.

[14] The Town issued a stop work order on August 30, 2021. However, all of the respondents continued to import fill onto the property and alter the grade of the property.

[15] The Town then revoked the permit on September 3, 2021. Despite the stop work order and the revocation of the permit, the respondents continued to import fill onto the property and alter the grade.

[16] The Town commenced the present application and served the respondents with a motion record for an interim injunction on September 9, 2021. The motion was returnable on September 21, 2021.

[17] The motion for an interim injunction was not resolved until the morning of September 21st. The Cascio respondents had consented to the relief requested on September 20th, and the Shire respondents consented on the morning of September 21st. Both the Shire respondents and the Cascio respondents were represented by counsel at that time.

[18] After the interim injunction order was granted, the Shire respondents and the Cascio respondents both delivered responding materials in the application. In their materials, all of the respondents maintained that the Town had approved the importation of approximately 18,000 cubic metres of fill, and they denied that they had breached the conditions of the permit.

[19] Cross-examinations of Cascio and VanVeen were arranged, and notices were served. VanVeen was cross-examined on December 2, 2021, but Cascio failed to attend for his cross-examination.

[20] Shortly after December 2, 2021, the Shire respondents conceded that there had been violations of the bylaw. The Town and the Shire respondents signed an agreed statement of facts document, dated March 9, 2022, whereby the Shire respondents admitted that they had contravened the conditions of the permit as more than 250 truckloads and more than 8,817 cubic metres of fill had been imported onto the property. The Shire respondents also admitted that they had failed to comply with the stop work order, and that they had continued to import fill onto the property after the permit had been revoked.

THE DECLARATIONS AND THE PERMANENT INJUNCTION

[21] The agreed statement of facts supports a finding of the pertinent facts alleged by the Town and supports the relief requested by the Town. The Shire respondents, through counsel, informed the court that they consent to the declarations and the permanent injunction requested by the Town in the notice of application, with slight adjustments to the wording which are acceptable to the Town.

[22] The Cascio respondents did not appear on the return of the application. In their responding material the Cascio respondents denied that they had contravened the conditions of the permit, and therefore the Town’s application is not uncontested. However, the evidence is very clear.

[23] Based on the evidence before me, I find that Cascio was in the business of transporting fill for profit, that Cascio offered to dump fill at the property for no charge to the Shire respondents, and that VanVeen agreed to that offer on behalf of Shire Corporation.

[24] I also find that the Cascio respondents dumped a minimum of 1,000 truckloads of fill, and a minimum of 10,000 cubic metres of fill, at the property. I find that the Cascio respondents were aware of the conditions of the permit and were aware that they were dumping fill at the property in contravention of those conditions. Further, after August 30, 2021, I find that the Cascio respondents knowingly dumped fill at the property in breach of the stop work order and in contravention of the revocation of the permit.

[25] Accordingly, I find that the Town has proved that both the Shire respondents and the Cascio respondents have contravened the conditions of the permit, breached the stop work order, and violated the bylaw, as alleged.

[26] The test for a permanent injunction pursuant to s. 440 of the Municipal Act where the validity of the bylaw is not in issue is summarized in the case of Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665 at paras. 4-7. The municipality must first establish a clear breach of the bylaw. If the municipality does so, the burden shifts to the respondents to show that there are exceptional circumstances such that the court should exercise its jurisdiction to refuse to order an injunction.

[27] In the present case, I find that the Town has established a clear breach of the bylaw, but that none of the respondents have provided any evidence of exceptional circumstances such that the injunction should not issue. Moreover, the Shire respondents acknowledge that there are no exceptional circumstances in this case. Therefore, I hereby make the declarations requested by the Town, and order a permanent injunction, both in accordance with the wording of the revised draft order submitted by the Town and approved by the Shire respondents.

ENTITLEMENT AND SCALE OF THE TOWN’S COSTS

[28] The Town has submitted a bill of costs with respect to its legal expenses for this application, including the interim injunction motion. The actual legal fees of the Town amount to $105,994, plus HST, plus disbursements of $2,918, for a total of $122,692.

[29] Using the actual fees as a starting point, the Town asks for an order that the respondents pay, on a joint and several basis, its costs on a substantial indemnity scale fixed at $87,122 for fees, plus HST, plus disbursements, for a total of $101,367.

[30] The Shire respondents concede that the Town is entitled to a costs award in its favour, and they agree that the Town’s costs should be payable on a joint and several basis by all of the respondents. However, in addition to disputing the quantum of the costs claimed, the Shire respondents submit that the Town’s costs should be awarded on a partial indemnity scale.

[31] I find that the Town was the successful party in this application and therefore it is entitled to a costs award. I also acknowledge that where the responding parties are jointly and severally liable to the prosecuting party they will also be jointly and severally liable for costs: see Hill v. Church of Scientology of Toronto (1994), 18 O.R. (3d) 385 (C.A.) at para. 255. Therefore, I find that the Town is entitled to its costs, payable by all of the respondents on a joint and several basis.

[32] Regarding the scale of costs, the general rule is that a successful party is entitled to its costs on a partial indemnity scale: see the decision in Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.) at para. 156.

[33] Substantial indemnity costs are payable if the conduct of the unsuccessful party is so reprehensible or egregious that the behaviour is worthy of sanctions by the court: see Hunt at para. 123, Davies v. Clarington, 2009 ONCA 722 at paras. 28-31, and the costs decision in Allied Properties v. 1064249 Ontario Inc., 2017 ONSC 32 at para. 4.

[34] I find that the conduct of the respondents in this case does not meet the requirements for a substantial indemnity costs award as the conduct was not so egregious or reprehensible as to require court sanctions.

[35] I accept the Town’s submissions that all of the respondents acted recklessly and/or deliberately disregarded the conditions of the permit, and all of the respondents continued dumping fill on the property after the stop work order was issued and after the permit was revoked. However, I find that the continuing breach of the bylaw does not necessarily mean that the conduct was deserving of court sanctions.

[36] In my view the continuing breach of the bylaw meant that there was an urgent need to commence legal proceedings in order to remedy the situation. In fact, the Town did proceed on an urgent basis and was able to quickly obtain the interim injunction. In simple terms, the Town brought its application, requested an interim injunction, and was successful with respect to both.

[37] I recognize that because urgent action was required, the law firm retained by the Town had to work quickly and perhaps employ more resources than would otherwise be the case. This may affect the amount of the costs, but it does not affect the scale.

[38] Counsel for the Town correctly submitted that there is a public interest component to this case. In particular, the Town submitted, and I accept, that the public has an interest in compelling compliance with municipal bylaws, and that ultimately the ratepayers of the Town will pay for the legal expenses of the Town.

[39] Despite the public interest component, I find that sanctions are not justified. In my opinion, in the absence of egregious or reprehensible conduct that constitutes a serious threat to the public interest, an application for an injunction as a result of illegal dumping of fill, as in the present proceeding, should normally attract partial indemnity costs.

[40] Accordingly, in this case I will award costs on a partial indemnity scale.

THE QUANTUM OF THE TOWN’S COSTS

[41] The Shire respondents submit that the amount charged for legal services performed by the Town’s lawyers, as set out in the bill of costs, is excessive given all of the relevant factors.

[42] In summary, there were three lawyers involved in this proceeding on behalf of the Town. The lead counsel for the commencement of the application and the interim injunction motion was Ms. Miehls who docketed a total of 72.2 hours up to her attendance on the return of the motion. Thereafter, she had no further involvement in the case. Her substantial indemnity hourly rate was $428 per hour.

[43] Junior counsel for the commencement of the application and the interim injunction motion was Ms. Muise who docketed a total of 56 hours up to the return of the motion. She also docketed another 34 hours thereafter up to the hearing of the application. Her substantial indemnity hourly rate was $364 per hour.

[44] In addition, a student was also involved with the commencement of the application and the interim injunction. That student charged a substantial indemnity rate of $100 per hour and docketed 43.5 hours.

[45] After the interim injunction motion, another lead counsel, Mr. Reiter, became involved. His work involved the cross-examinations, the reply record, the factum, and argument of the application. He docketed a total 40.6 hours. His substantial indemnity rate was $450 per hour.

[46] It is important to remember that in calculating a costs award, a court should not simply multiply the hours docketed by the hourly rates and then adjust the product of that calculation for the appropriate scale of costs: see BNY Financial Corp.-Canada v. National Automotive Warehousing Inc., [1999] O.J. No. 1273 at para. 5, and Boucher v. Public Accountants Council for the Province of Ontario, [2004] O.J. No. 2634, 71 O.R. (3d) 291 (C.A.) at para. 26.

[47] Rule 57.01 of the Rules of Civil Procedure lists a number of factors that a court may consider in exercising its discretion to award costs. Overall, the goal of a costs award, as discussed in Boucher at paras. 24-26, is to fix an amount that is fair and reasonable for the unsuccessful party to pay to the successful party in the circumstances. Moreover, the costs award should be within the reasonable expectations of the parties: see Boucher at para. 38, and see rule 57.01(1) (0.b) of the Rules of Civil Procedure.

[48] Counsel for both the Town and the Shire respondents referred to several factors for my consideration in determining the quantum of costs in this case.

[49] Counsel for the Shire respondents submits that the Shire respondents could not have reasonably expected to be responsible for such a large costs award given their role in the dumping activities. On that point, the Shire respondents submit that they were not motivated by greed or profit, and that at all times they relied upon the Cascio respondents for their expertise in the field of transporting fill and altering the grade of the property.

[50] I accept that the Shire respondents did not engage in this activity for the purpose of profit or for business reasons. I accept VanVeen’s statement that he intended to use the property for recreational purposes only. I also accept that Cascio was in the business of transporting and dumping fill for profit. Although Cascio offered to import fill onto the property for no fee, I find that Cascio was probably receiving money from other entities for dumping fill on this property.

[51] Further, I find that once the stop work order was issued and after the Town revoked the permit, the Shire respondents deferred to the Cascio respondents and their lawyer. The Shire respondents simply let the Cascio respondents handle the situation. The Shire respondents did not retain independent counsel until shortly before the return of the interim injunction motion.

[52] However, because the respondents are jointly and severally liable for costs, I find that the relationship between the Shire respondents and the Cascio respondents, and whether one respondent was motivated by greed, are not particularly relevant factors in the assessment of the quantum of the Town’s costs. Blameworthiness or fault as between jointly liable respondents does not reduce the legal expenses of the applicant. In the present case, both sets of respondents were contributing causes of the legal expenses of the Town.

[53] Moreover, the Shire respondents certainly engaged in blameworthy behaviour. Shire Corporation is the owner of the property and permitted Cascio to dump fill on the property, knowing that the conditions of the permit were being breached. Regardless of a profit motive, the Shire respondents received some benefit from the illegal dumping of fill. For these reasons, I find that all of the respondents should have reasonably expected to be responsible for a significant costs award as a consequence of the illegal dumping activities.

[54] As a corollary to the above comments, I accept that the relationship between the Shire respondents and the Cascio respondents is a factor that should be considered when I decide the issue of apportionment as between the two sets of respondents. At the apportionment stage, blameworthiness is a relevant factor.

[55] Counsel for the Shire respondents also submits, and I accept, that the Shire respondents engaged in conduct that tended to shorten the proceedings. In particular, the Shire respondents consented to the interim injunction motion, signed an agreed statement of facts, and consented to the substantive relief requested on the application.

[56] Regarding the interim injunction motion, the consent of the Shire respondents avoided the need for a full-blown argument on the interim motion, but the consent was very late. Although the Shire respondents’ conduct shortened the proceedings on the day of the motion, there was still a significant amount of work that was required from Town’s lawyers to get to the point at which the Shire respondents consented to the order.

[57] With respect to the application itself, I accept that the Shire respondents agreed to certain facts and did not contest the substantive relief requested. This certainly reduced the need for a fulsome argument on the application. However, the Town’s lawyers still had to prepare its case, prepare a factum, and conduct cross-examinations before an agreement was reached. Further, because the Cascio respondents did not agree to the facts or consent to the relief requested, the Town still had to argue its case on the return of the application.

[58] Again, regardless of which of the respondents was responsible for shortening or extending the process, the Town’s lawyers had to perform the work it undertook on this file in order to achieve a successful result. I accept that if the Cascio respondents had behaved in a similar manner to the Shire respondents, the Town’s lawyers would have been able to completely avoid arguing the substantive application. Again, this is not a factor that goes to the quantum of the Town’s costs as it does not reduce the legal expenses of the Town, but it is a factor that is relevant to the apportionment between the two sets of respondents.

[59] Another factor is the importance of the application to the parties. I agree that the matter before the court in this case was important, particularly to the Town. I accept that municipal bylaws generally prescribe the duties and obligations of the citizens of the municipality and provide a framework for peace and order in the community. Municipalities are responsible for enforcing those bylaws, and thus enforcing the rule of law in the community.

[60] Specifically, in this case I find that the enforcement of the bylaw with respect to importing fill and site alteration is an important task that is the responsibility of the Town. Any breach of the bylaw must be taken seriously.

[61] I must also consider the complexity of the proceeding. I find that the proceeding before me was below average in complexity. The legal tests for a declaration related to a bylaw, for an injunction to compel compliance with a bylaw, and for an interim injunction are well established. Further, the facts of this case are not particularly complex as the conditions attached to the permit are quite clear, as is the nature of a stop work order.

[62] Counsel for the Shire respondents also submits that the Town’s legal costs are higher than expected because the Town chose to retain Toronto lawyers who charged higher urban hourly rates. The Shire respondents submit that these hourly rates are excessive given that the property is located in Beamsville and that the proceedings took place at the St. Catharines courthouse. Therefore, they ask for a reduction of the Town’s costs in order to bring the rates more in line with rates that are charged in the geographic area of Niagara.

[63] I acknowledge that in some cases it may be appropriate to reduce legal fees charged by lawyers for a successful party in order to account for regional differences. However, in the present case it would not be reasonable to do so.

[64] The primary consideration in deciding whether hourly rates should be reduced for regional differences is the reasonable expectations of the parties. In the present case, all the respondents knew, prior to the commencement of the application, that the Town had retained a Toronto law firm to handle this issue, as all of the respondents had received warning letters from the Town’s present lawyers. It was very clear in those warning letters that if the respondents continued to breach the bylaw, the Toronto law firm that sent the letters would be commencing this application on behalf of the Town.

[65] Furthermore, it must be remembered that the Town is a municipality that is charged with protecting the public interest. One cannot expect that the Town will always rely on local counsel to handle important legal matters. On the contrary, legal matters regarding municipal corporations often require a certain expertise that is not always available in smaller centres. That often means that the municipalities will seek out law firms from larger urban areas for the purpose of handling important legal issues.

[66] I find that the respondents should have reasonably expected the Town to retain Toronto counsel, who would charge at Toronto hourly rates, if they continued to breach the bylaw. Therefore, I will not reduce the Town’s bill of costs to adjust for regional differences. Moreover, I find that the actual rates charged by the Town’s lawyers are within the reasonable range for this type of proceeding.

[67] Finally, both parties provided the court with costs decisions from prior proceedings that involved breaches of municipal bylaws and/or illegal dumping. I accept that a court should attempt to treat similar cases in a similar manner to avoid inconsistencies in the application of the law of costs; however, it is often difficult to compare the case before the court to any previous case as the circumstances can vary dramatically.

[68] In City of Pickering v. Slade, 2015 ONSC 1571, the municipality obtained an injunction order that restrained the respondents from dumping further fill on a property. Partial indemnity costs were awarded in a decision reported at Pickering (City) v. Slade, 2015 ONSC 4349, in the amount of $17,838. However, reading both the application decision and the costs decision together, it is clear that the amount of costs awarded related only to the application itself. A separate decision was rendered by another judge with respect to the interim injunction motion.

[69] In The Township of Amaranth v. Ramdas, 2020 ONSC 2428, the municipality obtained a declaration and a permanent injunction that restrained the respondent from illegally dumping fill on a property. Partial indemnity costs were awarded in the amount of $17,117. However, in that case the respondent did not file any material and the matter proceeded on an uncontested basis.

[70] In the case of The Corporation of the Town of Caledon v. Darzi Holdings Ltd. et al, 2020 ONSC 71, the court awarded partial indemnity costs of approximately $60,000 in an action against the defendants to enforce municipal bylaws. However, the factual matrix in that case is different from the present case as it involved violations of zoning bylaws related to land use, a barbed wire fencing bylaw, and the unauthorized use of an unopened road. Furthermore, in the Caledon case, the defendants did not contest the fact that they were in breach of the bylaw; the dispute was that the defendants were being singled out and prosecuted by the municipality when others in the community were not being prosecuted.

[71] These cases give me a sense of the general range of costs awards in municipal matters, but they are so unlike the present case that the amounts awarded in those cases do not establish any useful precedent for my decision in the present matter.

[72] In summary, the parties in the present case knew or should have known that it was important that the municipal bylaw be honoured. Unfortunately, after the stop work order was issued and the permit was revoked all of the respondents continued to disregard the provisions of the municipal bylaw. I find this led to an urgent situation and therefore the lawyers for the Town were required to act quickly. This meant that they had to use additional resources to initiate the application and get the interim injunction motion before the court.

[73] Although the matter was important and urgent, I find that the legal and factual issues were below average in complexity. Further, the consents of all the respondents immediately prior to the argument of the interim injunction motion, and the consent of the Shire respondents prior to the hearing of the application, reduced the amount of work that was necessary.

[74] In the light of these circumstances, I have considered the overall reasonableness of the bill of costs. I take no issue with the hourly rates charged, or the division of the work between the lawyers and student. I find that the only valid criticism of the amount of time expended by the law firm for the Town is the amount of time spent commencing the application, preparing the material for the interim injunction motion, and preparing to argue the motion. Although the lawyers were required to act quickly, in my view the amount of time spent seems excessive given the complexity of the matter.

[75] Therefore, for all services related to the commencement of the application, the preparation for the interim injunction motion, and the attendance at the motion, I will allow 50 hours for Ms. Miehls, 40 hours for Ms. Muise, and 30 hours for a student. I accept the partial indemnity rates set out in the bill of costs for these three people as $285, $243, and $80 per hour respectively. Thus, rounded, I will allow fees for legal services up to and including the attendance at the interim injunction motion on a partial indemnity scale in the amount of $26,000.

[76] With respect to the fees incurred after the interim injunction motion up to and including the argument on the application, I will allow the partial indemnity fees that are claimed in the bill of costs, which I will round down to $20,000.

[77] Therefore, I fix the costs of the Town at $46,000 in fees, plus HST of $5,980, plus disbursements of $2,918, for a total of $54,898. This amount is payable to the Town by the respondents on a joint and several basis, payable within 60 days.

APPORTIONMENT OF COSTS BETWEEN THE RESPONDENTS

[78] I have already mentioned several factors that relate to the apportionment of the Town’s costs as between the Cascio respondents and the Shire respondents. In my view, the Cascio respondents should bear more responsibility for the contraventions of the conditions of the permit and the violations of the bylaw, and for the consequent legal expenses of the Town.

[79] In particular, I accept that the Cascio respondents were illegally dumping fill on the property for profit. In contrast, the Shire respondents were not motivated by profit, but were trying to improve the property for recreational purposes. A profit-based business that continues to defy a municipal bylaw has a high degree of blameworthiness.

[80] Further, I accept that the Shire respondents relied upon the Cascio respondents for their expertise with respect to the dumping of fill. Thus, although the Shire respondents received a benefit from the illegal dumping, I accept that there should be more responsibility on the Cascio respondents for any contravention of the permit or the bylaw.

[81] Most significantly, I find that the Shire respondents attempted to shorten the proceedings by agreeing to an agreed statement of facts and by consenting to the substantive relief requested by the Town. The Cascio respondents did not attempt to shorten the application, even in the face of clear evidence against them. This meant that the application could not be resolved as an uncontested matter.

[82] Accordingly, as a result of the conduct of the Cascio respondents, the Town’s lawyers were required to perform additional legal services to prepare for the application hearing, and the Town was required to incur greater legal fees.

[83] For these reasons, the Town’s costs, for which all the respondents are jointly and severally liable to the Town, will be apportioned between the Shire respondents at 25 percent and the Cascio respondents at 75 percent, such that each may claim over against the other for any excess paid to the Town.

CONCLUSION

[84] For the reasons set out herein, I hereby order that: i. There will be a final order for declaratory relief and a permanent injunction in accordance with the wording of the revised draft order submitted by counsel. ii. The respondents shall pay the costs of the Town, fixed at $54,898, payable to the Town by all of the respondents on a joint and several basis, within 60 days. iii. As between the respondents, the Town’s costs will be apportioned between the Shire respondents at 25 percent and the Cascio respondents at 75 percent, such that each may claim over against the other for any excess paid to the Town.

J. R. Henderson J.

Date: April 19, 2022

ST. CATHARINES COURT FILE NO.: CV-21-60367 DATE: 2022/04/19 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: The Corporation of the Town of Lincoln Applicant And Shire Corporation, Wessuc Inc., Shane VanVeen, Red Earth Heavy Equipment Sales and Mario Cascio Respondents DECISION ON MOTION Henderson J. Released: April 19, 2022