Court File and Parties

COURT FILE NO.: CR-23-78-00MO DATE: 2023 11 21 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Gordon Baron and Lifestyles by Barons Inc. – and – Halton Region Conservation Authority – and – The Attorney General of Ontario

BEFORE: Conlan J.

COUNSEL: David Marshall and Matt Marshall, Responding Parties/ Applicants/Defendants Kenneth Jull and Eli Bordman, Moving Party/Respondent/Prosecutor

HEARD: In Writing

Endorsement on costs

I. Introduction

[1] The accused, Mr. Gordon Baron and his numbered Ontario corporation carrying on business as Lifestyles by Barons Inc. (collectively, “Baron”), were charged with two counts under section 28(1) of the Conservation Authorities Act, R.S.O. 1990, as amended.

[2] Although the charges have been outstanding for quite a while, they have not yet been tried in the Provincial Offences Court. The reasons for that, and the history of the proceeding, are outlined in this Court’s decision, Baron et al v. Halton Region Conservation Authority, 2023 ONSC 5568, and those details need not be repeated herein.

[3] On September 29, 2023, this Court heard a motion brought by the Halton Region Conservation Authority (“HRCA”). That motion was to strike Baron’s amended amended application dated September 8, 2023, which amended amended application sought a wide assortment of relief by way of certiorari and prohibition.

[4] In its decision referred to above, this Court granted the motion brought by HRCA and dismissed the amended amended application on behalf of Baron.

[5] Unable to resolve the issue of costs of the said motion and the amended amended application, the parties have filed written submissions. The parties agree on this Court’s authority to award costs, and the parties agree further that HRCA is entitled to some costs. The dispute is twofold – scale and quantum. HRCA asks for $30,000.00, all-inclusive, on a substantial indemnity basis, or alternatively $25,000.00 total on a partial indemnity basis, while Baron suggests that HRCA be awarded a total of $5000.00 on a partial indemnity basis.

[6] This Court orders that Baron shall pay to HRCA, within thirty (30) calendar days after November 21, 2023, costs in the total sum of $25,000.00, on a partial indemnity basis.

[7] In my view, that sum is a just, fair, reasonable, and proportionate quantum of costs in all of the circumstances of this case, including having regard to the reasonable expectations of the unsuccessful side, Baron.

[8] To address, very briefly, the submissions advanced on behalf of HRCA, particularly at paragraph 4 of its written argument on costs:

(i) this Court agrees that Baron’s amended amended application was “meritless”;

(ii) this Court agrees that Baron seemed to be not ready to proceed with the application at the end of August 2023, despite having scheduled it for that original return date;

(iii) this Court agrees that Baron’s application ought to have been abandoned, in whole or at least in part, after HRCA’s counsel provided to Baron’s counsel the authority in Patel v. Saskatchewan Health Authority, 2021 SKCA 115;

(iv) this Court agrees, on the basis of the correspondence between counsel attached to HRCA’s written costs submissions, that Baron ought to have accepted the terms of HRCA’s offer to adjourn, on consent, the August 30, 2023 hearing;

(v) this Court agrees that Baron’s counsel could, and should, have been more transparent with the court below in, for example, advising the justice of the peace that Baron had commenced a separate civil proceeding against, among others, Mr. Jull (HRCA’s prosecution counsel); and

(vi) this Court agrees that Baron’s application for prerogative relief was amended more than once.

[9] None of that, nor all of that collectively, however, persuades this Court to take the road less travelled and award to HRCA costs on a substantial indemnity basis. I make no finding of bad faith on the part of Baron or Baron’s counsel. More important, I think that $25,000.00 is a significant sum of money and adequate to meet the objectives of costs awards – (i) to partially indemnify successful litigants (here, HRCA), and (ii) to encourage settlement (here, to encourage Baron to have agreed to the August 30th adjournment on terms and to have abandoned or significantly narrowed the application after reviewing Patel, supra), and (iii) to discourage inappropriate or bad conduct (here, there was inappropriate conduct on the part of or on behalf of Baron, but that will be taken into account by not discounting the quantum of partial indemnity costs being sought by HRCA, as requested by Baron).

[10] To address, very briefly, the submissions advanced on behalf of Baron:

(i) this Court agrees that a significant amount of material filed by HRCA on its motion to strike was neither referred to in submissions by HRCA’s counsel nor relied upon by this Court in its decision on the motion;

(ii) this Court agrees that a significant amount of material filed by HRCA on its motion to strike relates to the proceeding in the lower court and filings in that court and, as such, is not material that is connected exclusively to the Superior Court of Justice proceeding;

(iii) this Court agrees that HRCA was not successful in its bid to have this Court order that the trial shall continue in the lower court pending the hearing of Baron’s amended amended application, that is in the event that the motion to strike had been dismissed, and although that lack of success turned out to be moot (because the motion to strike was granted) the fact remains that HRCA had to abandon that bid during oral submissions on the basis that it was not statutorily available in the circumstances of this case; however,

(iv) this Court does not agree that the amended amended application has anything at all to do with public interest litigation or some novel issue(s) that should not attract what would otherwise be considered to be usual costs consequences, that is partial indemnity recovery by the successful side; and

(v) this Court does not agree that “this matter arose due in large part to the conduct of an admittedly biased lower Court”, in the words of Baron’s counsel.

[11] In summary, although the submissions on behalf of Baron that this Court does accept may have persuaded me to apply a discount to the $25,000.00 partial indemnity figure sought by HRCA, it is also true that the submissions on behalf of HRCA that this Court accepts may have persuaded me to order costs against Baron on a scale closer to substantial indemnity recovery.

[12] On balance, the penultimate question is what is a fair amount? $25,000.00 is considerably less than the actual partial indemnity costs figure ($30,855.78) found in the costs outline filed by HRCA’s counsel. Further, $25,000.00 is even considerably less than what Baron ought to have reasonably anticipated based on its own counsel’s costs outline, which outline shows more than $29,000.00 in costs incurred by Baron, or at least charged to Baron, on account of HRCA’s motion to strike, alone.

[13] For these reasons, order made as per the above, in bold print.

Conlan J. Date: November 21, 2023