Burlington (City) v. Burlington Airpark Inc.
Adverse findings against Airpark did not justify denying it costs of the application; however it was unreasonable that the City, as applicant, face a partial indemnity award 25% higher than the substantial indemnity costs it incurred, so the court fixed Airpark's costs of the application at $80,000 inclusive of...
Source-derived case information.
- Citation
- 2017 ONCA 672
- Parties
- Appellant: The Corporation of the City of Burlington; Respondent: Burlington Airpark Inc.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 25 August 2017
- Procedural Posture
- Civil Appeal / Court of Appeal Costs Endorsement Following Appeal Decision
- Outcome
- Appeal allowed in part on costs; appeal costs fixed and application costs reallocated
- Legal Topics
- Costs of Litigation, Indemnity Costs, Substantial Indemnity, Partial Indemnity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Corporation of the City of Burlington
Appellant
Burlington Airpark Inc.
Respondent
Procedural Posture
Civil Appeal / Court of Appeal Costs Endorsement Following Appeal Decision
Legal Issues
- 1 Whether respondent on the application (Airpark) was entitled to costs of the application despite adverse findings against it
- 2 Whether the quantum and basis of costs awarded by the application judge were reasonable
- 3 Whether it was reasonable that a successful applicant face a partial indemnity award greater than the substantial indemnity costs it incurred
Ratio Decidendi
Adverse findings against Airpark did not justify denying it costs of the application; however it was unreasonable that the City, as applicant, face a partial indemnity award 25% higher than the substantial indemnity costs it incurred, so the court fixed Airpark's costs of the application at $80,000 inclusive of disbursements and taxes.
Court Disposition
Appeal allowed in part on costs; appeal costs fixed and application costs reallocated
Orders
- Costs of the appeal fixed at $40,000 inclusive of disbursements and taxes (by agreement)
- Respondent on the application (Airpark) awarded costs of the application in the amount of $80,000 inclusive of disbursements and taxes
Full Case Text
Judgment text and source record
1 paragraphs
Burlington (City) v. Burlington Airpark Inc. Collection Decisions of the Court of Appeal Date 2017-08-25 Neutral citation 2017 ONCA 672 Docket numbers C62477 Judges Feldman, Kathryn N.; Sharpe, Robert J.; Roberts, Lois B. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Burlington (City) v. Burlington Airpark Inc., 2017 ONCA 672 DATE: 20170825 DOCKET: C62477 Feldman, Sharpe and Roberts, JJ.A. BETWEEN The Corporation of the City of Burlington Appellant (Respondent in Appeal) and Burlington Airpark Inc. Respondent (Appellant) John B. Laskin and Peter E.J. Wells, for the appellant Ian Blue, Q.C. and Anna Husa, for the respondent Heard: March 28, 2017 On appeal from the judgment of Justice M.R. Gibson of the Superior Court of Justice, dated June 30, 2016. COSTS ENDORSEMENT [1] The parties agreed to fix the costs of this successful appeal in the amount of $40,000 inclusive of disbursements and taxes. In para. 53 of our decision we indicated that if the parties were not able to agree as to the costs of the underlying application, they could make submissions in writing. We have been advised that the parties do not agree and we have now received their written submissions. [2] Airpark, respondent on the application, asks for costs of the application on a partial indemnity basis fixed at $149,917.90. The City was the successful party below and the application judge awarded the City costs of the application on a substantial indemnity basis fixed at $118,327.53. [3] In view of our conclusion on the merits of this appeal, we are not persuaded that the application judge’s adverse findings against Airpark are a sufficient reason to deny Airpark its costs of the application. However, we cannot agree that it could have been in the reasonable contemplation of the City that it would be faced with an award of partial indemnity costs that is 25% higher than the substantial indemnity costs it incurred, particularly as the City was the applicant. [4] In our view, a reasonable award to Airpark for the costs of the application is $80,000, inclusive of disbursements and taxes, the amount the City sought by way of partial indemnity costs before the application judge and we so order. “K. Feldman J.A.” “Robert J. Sharpe J.A.” “L.B. Roberts J.A.”