COURT FILE NO.: CV-19-00002405 & M8816/93
DATE: 20220914
SUPERIOR COURT OF JUSTICE - ONTARIO
Court File No.: CV-19-00002405-0000
In the Matter of the Planning Act, R.S.O. 1990, c. P.13, and amendments thereto
BETWEEN:
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Applicants
– and –
The Corporation of the Town of Milton
Respondent
B. Romano, for the Applicants
K. Stavrakos, for the Respondent
Court File No.: M8816/93
AND BETWEEN:
The Corporation of the Town of Milton
Applicant/Moving Party
– and –
Eugene Cummins and E. Cummins & Sons Ltd.
Respondents on Application
- and -
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Respondents on Motion
K. Stavrakos, for the Applicant/Moving Party
B. Romano, for the Respondents on Motion
BEFORE: Conlan J.
ENDORSEMENT on costs
I. The Underlying Proceeding
[1] In their Amended Notice of Application dated May 20, 2021 (“Application”), the Applicants, Paul Cummins (“Paul”) and Patrick Cummins (“Patrick”), sought a declaration that they had the right to use their property (5193 Eighth Line, Milton – the “Property”) for specific purposes related to heavy vehicles and the ancillary deposit of clean fill.
[2] Paul and Patrick relied upon subsection 34(9) of the Planning Act, R.S.O. 1990, c. P.13, as amended, which, at paragraph (a) therein, provides that no by-law passed under section 34 (which deals with zoning) applies to prevent the use of any land for any purpose prohibited by the by-law if such land was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose.
[3] In their Application, Paul and Patrick submitted that “[a]t all material times, the use of the [Property] for the aforesaid purposes has been done openly, continuously and with the full knowledge of the [Town of Milton]”, beginning in or around 1984.
[4] This Court agreed with Paul and Patrick that “the case boils down to whether or not there was a legal use of the [Property] in 1984, which has continued to today’s date” – paragraph 4 of the Applicants’ factum dated June 7, 2021.
[5] In its decision dated October 28, 2021, Cummins v. Town of Milton, 2021 ONSC 7181, after a five-day hearing which was conducted over the Zoom platform, this Court dismissed the Application. It was concluded that “assuming that the evidence establishes on balance that what the Applicants now want to use the Property for (see the declaratory relief that they are seeking in their Application) was in fact going on at the Property in or around 1984, as alleged, it matters not because that activity was not lawful under zoning by-law 1965-136, subsection 56(1)(i)”, the municipal zoning by-law relied upon by Paul and Patrick (paragraph 21 of the Court’s reasons), and thus, the Applicants’ legal non-conforming use argument could not succeed.
[6] In other words, “the alleged uses made of the Property in or around 1984 and continuing uninterrupted to today, even if true, were not lawful under [zoning by-law 1965-136, subsection 56(1)(i)]”, for more than one reason (paragraph 45 of the Court’s reasons).
[7] As part of the same hearing, the Court dealt with a motion by the Town of Milton for an Order that Paul and Patrick be found in civil contempt of Court for breaching an Order made by Justice Carnwath way back in 1994. In the proceeding before Justice Carnwath, the Town of Milton had sought an injunction prohibiting future dumping on the Property and requiring the then respondents to rehabilitate the lands. This Court described the Order made by His Honour this way, at paragraph 15 of this Court’s reasons.
- Justice Carnwath made a sweeping and severe Order. His Honour ordered that the respondents, and their agents and successors and assigns (which terms undoubtedly include Paul and Patrick), shall be restrained absolutely from placing or causing or permitting to be placed anywhere on the Property any material of any nature or kind whatsoever originating from outside the Property, without the express written consent of the Town of Milton and under its supervision (page 18 of the transcript of the Reasons for Judgment, and the “Judgment” itself).
[8] The Town of Milton’s contempt motion was dismissed by the Court. After setting out the law on civil contempt, this Court held the following at paragraphs 55 through 62 of its reasons.
The Motion succeeds on all three necessary elements but not on the discretionary aspect of the analysis.
The Order is about as clear as one could get. Don’t bring a thing onto the Property; that is the literal interpretation of it.
Paul and Patrick were, they admit, fully aware of the Order and its terms.
58 Paul and Patrick did intentionally, they admit, allow fill to be brought onto the Property on November 12, 2020, and that intentional act was in clear violation of the Order.
59 Nonetheless, a finding of contempt is not appropriate here, in my opinion.
First, I accept the evidence of the alleged contemnors, through Patrick, that they genuinely believed that the fill was being offered by the Town to residents, including them, as part of a municipal roads resurfacing project. Given that finding of fact, I am not comfortable employing the “hammer” of a contempt citation.
Second, there is another reasonable alternative available in the circumstances. That is to invite the parties, encourage them in fact, to take steps to amend the Order in question, for the sake of everyone involved. I have already done so earlier in these reasons.
Third and finally, any argument by the Town that there has to be some meaningful consequence to what occurred on November 12, 2020 can be addressed through the issue of costs. It may be that Paul and Patrick, presumptively entitled to some costs on the contempt motion, should be awarded either no costs or reduced costs because of the lengthy history of this Property being in violation of the law and the extent to which the Order was violated on November 12th.
[9] The Court invited submissions on costs of both the Application and the contempt motion if they could not be resolved between the parties. For various reasons, those submissions were very significantly delayed. The written submissions were filed only within the last couple of weeks, with the last set of submissions received by the Court on September 13, 2022.
II. The Positions of the Parties on Costs
[10] The “Cummins’ respectfully request $54,000.00 for their partial indemnity costs of the contempt motion, which is approximately 40% of their overall time expended in these matters”.
[11] Counsel for Paul and Patrick have filed a Bill of Costs which shows, for both the Application and the contempt motion, full indemnity costs of $210,863.27 and partial indemnity costs of $134,938.57.
[12] In their further written submissions on costs dated September 12, 2022, “the Cummins’ submit that partial indemnity costs of the application ought to be payable to the Town of Milton in the amount of $70,318.43, plus disbursements in the amount of $20,096.01”. Paul and Patrick argue that the Town of Milton’s costs are far too high, claiming 684.4 total hours for the Application as compared to 367.6 hours claimed by Paul and Patrick for both the Application and the contempt motion. Paul and Patrick also submit that the Town of Milton has double-billed or improperly billed for two disbursements (Ms. Thomas and Meridian Planning) and has claimed expert fees that are significantly higher than those claimed by Paul and Patrick. Finally, Paul and Patrick submit that the Town of Milton ought not to be awarded any costs for the contempt motion.
[13] The Town of Milton seeks costs as follows: (i) for the Application, $201,973.40 on a partial indemnity scale and (ii) for the contempt motion, partial indemnity costs in the amount of $30,704.07, for a grand total of nearly $233,000.00 in costs (paragraph 1 of the Town of Milton’s initial written costs submissions). Alternatively, on the contempt motion, no costs should be awarded to either side, the Town of Milton submits.
[14] In its further written submissions on costs dated September 13, 2022, the Town of Milton, regarding the contempt motion, “respectfully submits that those costs [if awarded in favour of Paul and Patrick, which is disputed] should be significantly and meaningfully reduced to ensure that this Court does [not] reward the Applicants’ conduct”.
III. The General Law of Costs
[15] In deciding costs, this Court must strive to make an award that is fair, just, reasonable, and proportionate in all of the circumstances presented. Any costs order should have three objectives: (i) to at least partially indemnify the successful litigant, (ii) to encourage settlement, and (iii) to address and deter bad or inappropriate conduct by a litigant.
[16] Costs decisions are inherently discretionary, and in exercising its discretion the Court should consider the factors outlined at Rule 57.01(1) of the Rules of Civil Procedure. Although the Court has the discretion to deny costs to a successful party, or to even award costs against the successful party, the presumptive rule is that a successful party is entitled to some costs [subrules (1) and (2) of Rule 57.01].
[17] On the scale of costs, in the majority of cases the most appropriate result will be on the basis of partial indemnity.
IV. Decision
[18] On the issue of entitlement to costs, I find that the Town of Milton was wholly successful on the Application and is entitled to some costs with respect to that portion of the overall proceeding. I also find that Paul and Patrick were successful on the contempt motion and would normally be entitled to some costs on that portion of the overall proceeding.
[19] In light of this Court’s comments at paragraphs 55 through 62 of its reasons, however, quoted above, pursuant to Rule 57.01(2), the Court exercises its discretion to not award any costs to Paul and Patrick for the contempt motion. There is nothing contained in the Applicants’ written costs submissions that has caused the Court to change its initial view in that regard.
[20] This Court is also not awarding any costs in favour of the Town of Milton with regard to the contempt motion. I have read the authority cited by the Town of Milton, Peddle v. Peddle, 2021 NLSC 2, and Rule 57.01(2) certainly permits the Court to do what the Town of Milton is requesting, but this Court agrees with counsel for Paul and Patrick that the Court’s finding at paragraph 60 of its reasons, set out above, militates against the Town of Milton’s request.
[21] As an aside, at paragraph 8 of the Town of Milton’s initial written costs submissions the following sentence appears, underlined, “[t]he Town respectfully asks that this be made clear in this Court’s costs reasons that the Town never sanctioned the dumping on any private property, as the reasons for Judgment are silent on this point”. That is not an appropriate submission on costs. This Court’s reasons for judgment are what they are; if the Town of Milton is of the view that they are incomplete then there is another forum for that complaint.
[22] Thus, on the contempt motion, there shall be no order as to costs.
[23] On the Application, there is no good reason to depart from the presumption that the Town of Milton should receive some costs, and there is also no good reason to award anything other than partial indemnity costs.
[24] In my view, though, $201,973.40 is not a reasonable quantum of costs in this case. That figure is too high, for three reasons. First, in terms of the reasonable expectations of the parties, that figure is nearly $70,000.00 higher than the entire proceeding’s partial indemnity costs claimed by counsel for the Applicants, and counsel for Paul and Patrick were every bit as prepared and thorough as were counsel for the Town of Milton. Second, the $201,973.40 figure is about 70% of the Town of Milton’s full indemnity costs, while the Applicants’ partial indemnity costs are significantly less in terms of the recovery percentage based on full indemnity. Although every case is to be determined on its own and not to be measured by some fixed and rigid rule, it has long been the practice in Ontario that partial indemnity costs are roughly 60% of full indemnity costs. Moore v. Getahun, 2014 ONSC 3931, at paragraphs 20 and 21 (that case went to the Court of Appeal for Ontario on more than one issue, however, the Court of Appeal’s decisions did not disturb the general principle stated). Third and finally, although the Town of Milton was wholly successful on the Application, it is also true that this Court expressed some understanding of why the Applicants pursued the matter as they did. There is no question that the 1994 Court Order is extremely restrictive and, literally interpreted, clearly unworkable. It appears to this Court, with respect, that the Town of Milton has been unreasonably slow to acknowledge this.
[25] The other complaints raised by Paul and Patrick in their further written submissions on costs dated September 12, 2022, summarized above, have been considered by this Court but are adequately dealt with by way of the overall reduction in the claim for costs advanced by the Town of Milton.
[26] In all of the circumstances, I would fix the Town of Milton’s partial indemnity costs of the Application at $150,000.00, all-inclusive. That, this Court believes, is a fair, just, reasonable, and proportionate result. That figure remains significantly higher than what Paul and Patrick have suggested, about $90,000.00 all-inclusive, but it is also a sizeable reduction in what was requested by the Town of Milton, about $202,000.00 all-inclusive, such reduction being appropriate for all of the reasons stated above.
[27] This Court therefore orders, on the Application, that the Applicants, Paul and Patrick, shall pay to the Respondent, the Town of Milton, costs in the amount of $150,000.00.
[28] I would like to thank Mr. Romano and Mr. Stavrakos for their helpful submissions on costs.
Conlan J.
Date: September 14, 2022