Court File and Parties

COURT FILE NO.: CV-22-0249-00 DATE: 2023-03-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CORPORATION OF THE CITY OF THUNDER BAY Applicant

- and -

DAWN MCKAY Respondent

BEFORE: Mr. Justice W. D. Newton

COUNSEL: Anne-Marie McKitrick, for the Applicant Self-rep, for the Respondent

HEARD: Written Submissions

Reasons on Cost

[1] My decision dated February 10, 2023 2023 ONSC 1033 granted the City’s request to have an arbitrator appointed. I also ordered that the City was entitled to its costs of the application on a full indemnity basis “given Ms. MacKay’s behavior in refusing to participate in arbitration as required under the lease.” 2023 ONSC 1033 at para. 40.

[2] I have received costs submissions from the City. Ms. MacKay was given the opportunity to file costs submissions but has not done so.

[3] The City seeks costs $24,331.90 and submits that the application was made unnecessarily complex by a number of irrelevant assertions raised by Ms. MacKay. I agree with that submission.

[4] The City cites one of the seminal Ontario costs decisions, Boucher et al. v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.). In that decision the Court of Appeal stated that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances.

[5] Over 100 hours are claimed at an hourly rate of $200. No issue is taken with the hourly rate. Having reviewed the hours claimed for each stage of the proceeding and while acknowledging the complexity caused by the arguments raised by Ms. Mackay and the extra time due to her failure to co-operate, my view is that the amount that is fair and reasonable in the circumstances of this case, is slightly less than what is claimed here (a reduction of about 20 hours) and fix the costs payable by Ms. Mackay to the City in the amount of $17,000 plus HST plus disbursements of $568.00.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: March 31, 2023

/cjj