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This is the Cost Endorsement from a full panel of judges who rejected the appellant's submission that they are public interest litigants, as Justice Hackland had found (Nov. 17, 2016 resulting in no costs awarded against the Appellants for the motion in front of him), and awarded 5000.00 dollars in costs against the Appellants for the motion in front of them.
This is the Cost Endorsement from a full panel of judges who rejected the appellant's submission that they are public interest litigants, as Justice Hackland had found (Nov. 17, 2016 resulting in no costs awarded against the Appellants for the motion in front of him), and awarded 5000.00 dollars in costs against the Appellants for the motion in front of them.
This is the Cost Endorsement from a full panel of judges who rejected the appellant's submission that they are public interest litigants, as Justice Hackland had found (Nov. 17, 2016 resulting in no costs awarded against the Appellants for the motion in front of him), and awarded 5000.00 dollars in costs against the Appellants for the motion in front of them.
CITATION: Cardinal v. Windmill Green Fund LPV, 2017 ONSC 29
DIVISIONAL COURT FILE NO.: DC-16-2215
DATE: 20170111
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: DOUGLAS CARDINAL et al., Appellants
~and-
WINDMILL GREEN FUND LPV AND CITY OF OTTAWA, Respondents
BEFORE: — Swinton, Whitten and McCarthy JJ.
COUNSEL: Michael Swinwood, for the Appellants
Ronald F. Caza and Alexandra Savoie, for the Respondent City of Ottawa
HEARD: in writing
COSTS ENDORSE!
[1] _ The City of Ottawa seeks costs of the motion to set aside the order of Hackland J.
refusing leave to appeal a decision of the Ontario Municipal Board. The amount sought is
$12,845.59 plus disbursements of $920.27. Windmill does not seek costs.
[2] The appellants submit that there should be order of costs, as they are public interest
litigants. «
[3] _ Hackland J. awarded no costs for the motion for leave to appeal, accepting that the
appellants should be considered public interest litigants for purposes of that motion.
[4] Wechave taken into account the factors to be considered when deciding whether an
unsuccessful litigant should be excused from paying costs because of the public interest nature of
the litigation (see St. James Preservation Society v. Toronto (City), 2007 ONCA 601 at para.
23), We reach a different conclusion from Hackland J. with respect to the costs for the motion
to set aside because the issue in the motion was not in the public interest.
[5] The test on a motion to vary or set aside a denial of leave to appeal is well-established:
did the motions judge decline jurisdiction when he refused leave to appeal? The appellants’Page: 2
motion to set aside was totally without merit. In effect, they sought to appeal the decision of the
motions judge and to reargue the merits of the leave motion. In these circumstances, the motion
to set aside cannot be characterized as litigation in the public interest.
(6] Accordingly, costs to the City are fixed at $5,000.00 all in, on a partial indemnity basis,
an amount that is fair and reasonable for a motion of this type, payable by the appellants on a
Joint and several basis.
A wd eaten, te
Date: January // ,2017