) ) GREG BEROS Applicant – v. –, 2017 ONSC 2456

CITATION : Beros v. Regan, 2017 ONSC 2456 DIVISIONAL COURT FILE NO.: 430/15 DATE: 20170419 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN: ) ) GREG BEROS Applicant – and – JENNIFER WOOTTON REGAN and THE TOWN OF RICHMOND HILL Respondents ) ) ) ) ) ) ) ) )) Courtney V. Raphael and Brian Chung , for the Applicant Charles M. Loopstra, Q.C. , and Daron L.

Earthy , Respondents ) HEARD at Toronto: April 19, 2017 Swinton J. (Orally) [ 1 ] The applicant, a town councillor, brought an application for judicial review against the respondents seeking to quash the report of the respondent, Jennifer Wootton Regan, an external investigator appointed to investigate a claim of sexual harassment brought by a town employee against the applicant, and the actions of the Town of Richmond Hill (the “Town”), including its decision to refer the complaint to the Integrity Commissioner to carry out investigations it found necessary to determine if there had been a breach of the Code of Conduct and if so, to recommend actions to be taken. [ 2 ] Subsequently, the Integrity Commissioner concluded that it could not determine whether the complaint of the now former employee was well founded.

As the former employee would not participate in the investigation, the Integrity Commissioner could not carry out a proper assessment of credibility. [ 3 ] The applicant has now amended his application for judicial review to seek only a declaration that the application is moot. He also seeks his costs. [ 4 ] Assuming that the application for judicial review is moot, this is not one of those cases where costs should be awarded to the applicant even though the proceeding has become moot. [ 5 ] The applicant relies on Broomer v. Ontario (Attorney General) , [2004] O.J. No. 2431 (Div. Ct.) and Josef v.

Ontario (Minister of Health), [2013] O.J. No. 4400 (S.C.J.) . In both those cases, the applicants challenged the validity of government regulations. Before the applications were heard, the government changed the regulations as a result of a change in government policy. [ 6 ] In Josef at para. 18, the Court stated that in “unusual circumstances”, an applicant may be awarded costs where the central issue in the proceeding has becomes moot.

The applicants in both Josef and Broomer were public interest litigants, and the change in government policy resulted in their costs being thrown away despite, in effect, their success. In Broomer , the Divisional Court concluded that the applicants were, in effect, successful when it stated (at para. 11): Where one of the respondents, Attorney General of Ontario, undertakes

an act that obviates the necessity for continuation of the application, because the applicant has achieved what it wanted, that respondent cannot then argue that the applicants were not successful. The respondent government took away the opportunity for the applicants to win their case. The applicants had their entitlement to benefits restored, which was the end result they sought. The respondents cannot, in effect, pull the rug out from underneath their opponent by acceding to their position and then arguing that position had no merit. The applicants’ position did have merit.

In amending the legislation, the government agreed it did. [ 7 ] There are no unusual circumstances here that would justify a costs award to the applicant. First, he is not a public interest litigant, and his application raises no issues of general public interest.

[ 8 ] Second, there was no action by the respondent Town that has caused his application to become moot. The event that made this application moot was the decision of the Integrity Commissioner not to proceed further with the investigation. Moreover, the fact that the Town subsequently changed its workplace policy and procedure respecting sexual harassment is not an acknowledgment that the Town’s process was unfair to the applicant. [ 9 ] Third, this is not a case where the applicant has, in effect, succeeded on the application, as in Broomer .

In the end result, the applicant was not vindicated. [ 10 ] For these reasons, the application for judicial review is dismissed. COSTS [ 11 ] The respondent Town seeks costs of the application on a partial indemnity basis in the amount of $60,000 to $75,000, or at least $43,000, the applicant’s amount claimed for partial indemnity costs. [ 12 ] The amount sought is not fair and reasonable in the context of this case. The materials are not voluminous. There were no cross-examinations.

The issues are not complex and difficult and never had to be argued on the merits, either in the facta or here today. [ 13 ] The hours claimed are excessive. There is duplication with earlier counsel’s work. Costs for earlier uncontested motions are now being sought. These should have been dealt with at the time of the motions. [ 14 ] The only contested issue today is the applicant’s claim for costs, not the merits of the application, and the respondent succeeded on this issue.

In my view, both parties are seeking an excessive amount in costs for a case of this complexity and for this reason, I would not award even the $43,000 sought. [ 15 ] Costs of this application are fixed at $15,000 all inclusive payable to the respondent Town, an amount that is fair and reasonable in the circumstances. [ 16 ] I have endorsed the Application Record: The application is dismissed for oral reasons delivered today. Costs to the respondent Town fixed at $15,000 all in. ___________________________ Swinton J. I agree ___________________________ Linhares de Sousa J.

I agree ___________________________ Spies J. Date of Reasons for Judgment: April 19, 2017 Date of Release: April 25, 2017 CITATION : Beros v. Regan, 2017 ONSC 2456 DIVISIONAL COURT FILE NO.: 430/15 DATE: 20170419 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN: GREG BEROS Applicant – and – JENNIFER WOOTTON REGAN and THE TOWN OF RICHMOND HILL Respondents ORAL REASONS FOR JUDGMENT Swinton J. Date of Reasons for Judgment: April 19, 2017 Date of Release: April 25, 2017