2013 ONSC 4665, 2013 ONSC 4665

CITATION : The Corporation of the Town of Richmond Hill v. Yonge Bayview Holdings Inc., 2013 ONSC 4665 DIVISIONAL COURT FILE NO.: 555/12 DATE: 20130709 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: The Corporation of the Town of Richmond Hill, Moving Party AND: Yonge Bayview Holdings Inc., Respondents BEFORE: Harvison Young J. COUNSEL: Barnet Kussner , for the Moving Party Mark Flowers , Ira T. Kagan, Jeffrey E. Streisfield, Roslyn Houser, Barry Horosko and Caterina Facciolo, Aaron I. Platt, Richard R.

Arblaster, for the Respondents, for the Defendant HEARD: April 4, 2013 ENDORSEMENT [ 1 ] I have now received and reviewed the costs submissions filed by The Corporation of the Town of Richmond Hill and Mr. Streisfield who seeks costs on behalf of his clients, Haulover Investments Ltd., Montanaro Estates Limited and Yvonne Worden. All other respondents apparently reached an agreement as to the costs of the motion with the applicant, the terms of which are subject to a confidentiality provision. [ 2 ] The respondents were successful in opposing the motion for leave on the basis of prematurity.

The only factum before the Court was submitted by Mark Flowers (who represented Yonge Bayview Holdings Inc.), and Mr. Flowers took the lead in oral argument on behalf of all the respondents, with Mr. Kagan and Mr. Streisfield making supplemental submissions on behalf of their clients. While adopting the submissions made by Mr. Flowers, Mr. Streisfield seeks partial indemnity costs in the amount of $6,800 inclusive of fees and GST, as well as an additional amount of $750 plus HST for the preparation of the costs submissions.

He states that he played a significant role both with respect to the research and the preparation of the factum. [ 3 ] The Corporation of the Town of Richmond Hill submits that this is a case in which each party should bear its own costs because the “motion has some element of public interest”, that the issue is a novel one, and that the motion was disposed of on the narrow basis of prematurity. [ 4 ] I do not agree that these reasons justify a departure from the usual rule that costs follow the event. Mr.

Kussner’s submissions that the case is a novel one of public interest might well apply should an appeal ultimately proceed, but it does not, in my view, justify a departure from the usual rule when such a motion for leave is dismissed on the basis of prematurity. The respondents had argued forcefully and successfully that the motion was premature. [ 5 ] Having said that, the amount of costs sought by Mr. Streisfield are excessive in the circumstances. I would award the amount of $3000, inclusive of disbursements and HST. Harvison Young J. Date: July , 2013