Court File and Parties

Court File No.: CV-18-52382 Date: 20220921 Ontario Superior Court of Justice

Applicants: Regional Municipality of Halton, Corporation of the Town of Milton, Corporation of the Town of Halton Hills, The Corporation of the City of Burlington, Corporation of the Town of Oakville and The Halton Region Conservation Authority

-and-

Respondent: Canadian National Railway Company

Before: FL Myers J

Counsel: Rodney Northey, Kent E. Thomson, Steven G. Frankel, and Chenyang Li, for the Applicants Sheila Block, Andrew Bernstein, Yael Bienenstock, and Jonathan Silver, for the Respondent

Read: September 21, 2022

Endorsement

[1] In the last sentence of my costs endorsement dated September 20, 2022, I held:

In my view, it is fair and reasonable to award CN its costs on a partial indemnity basis as claimed and I do so.

[2] The amount CN claimed for costs on a partial indemnity scale in its Costs Outline was $2,288,314.57 all-inclusive. Fees made up $1,865,427.06 of that amount.

[3] I made a transposition error when I wrote the costs amount in my endorsement form. Although, I specifically amended the “Costs” block in the template form of endorsement to show that I was ordering an “all-inclusive” amount of costs, I mistakenly wrote only the fee total rather than the total of fees, taxes, and disbursements to aggregate to the all-inclusive amount ordered.

[4] As far as I know, no formal order has been taken out on the costs decision.

[5] Mr. Bernstein pointed out my error in a letter this morning. In response, Mr. Li drew the short straw and was tasked with writing to me to object to the correction of my slip. He wrote:

The Applicants object to Mr. Bernstein’s request that Your Honour revise the costs endorsement. In our respectful submission, the costs endorsement is clear. It states expressly that costs have been fixed at $1,865,427.06 all-inclusive.

Moreover, the Applicants have already commenced an appeal of the decision in this Application, including the resulting costs award. The Respondent should not be permitted to disturb the appeal process by seeking revisions to a decision that is the subject of the pending appeal.

If the Respondent has concerns with the costs endorsement, it can raise that issue on cross-appeal at the Court of Appeal for Ontario

[6] While submitting that I clearly fixed costs at “$1,865,427.06 all-inclusive”, counsel omits that this quantum is not an “all-inclusive” amount. Neither was it the amount claimed by CN that I said I was awarding in the body of my endorsement.

[7] After receiving both letters, I sent the following correspondence to counsel:

I have counsels’ correspondence of today’s date. Does counsel for the applicants have a position on the merits of the submission that the costs as claimed by CN on partial indemnity and all-inclusive basis, were in the amount set out in Mr. Bernstein’s letter?

[8] Mr. Li responded and confirmed:

The amount of $2,288,314.57 set out in paragraph 3 of Mr. Bernstein’s letter is the total of the fees, GST on fees, and disbursements claimed by CN on a partial indemnity basis in its costs outline of September 2,2022.

[9] While it appears that the applicants would rather put the parties and the Court of Appeal to the expense of a cross-appeal to fix a typo, I respectfully suggest that the Court of Appeal will not be disturbed and would prefer to have the corrected and intended outcome before it instead of a cross-appeal about a transposition error. As I am publishing an endorsement disclosing my error, it will be available for the parties and the Court of Appeal to see and utilize as they deem appropriate.

[10] My order dated September 20, 2022 is amended to correct the amount shown for the costs awarded to: $2,288,314.57 all-inclusive.

FL Myers J

Date: September 21, 2022