Ontario Civil

Civil Practice and Procedure


Particular orders as to costs

Court proceeding, reopened on basis of fraudulent document, attracting significant costs award

Respondent Chief Building Officer revoked building permit issued for construction on appellant’s property (“revocation order”). Appellant appealed revocation order to Superior Court. Appeal was dismissed. Parties made submissions as to costs. Respondents submitted that appellant had provided fraudulent document (“Exhibit H”) in support of his motion to reopen appeal and had caused respondents considerable time and expense in effort to determine whether Exhibit H was authentic document; and accused respondents of conspiring to hide true zoning for appellant’s property. Respondents awarded full indemnity costs of in amount of $50,976.96. Respondents were most successful party. It could not have been outside reasonable expectation of appellant that court proceeding, reopened on basis of fraudulent document, would attract significant cost award. Hours charged and rates set out by respondents, relative to circumstances of this case and counsel’s year of call, were fair and reasonable. In this case, there had been fraud and unproven allegations of conspiracy: impact of authentic Exhibit H were used to buttress argument for reopening appeal and was important factor in court’s decision to reopen appeal. Reasonable conclusion was that failure to consider new document that could resolve dispute would constitute miscarriage of justice. After applying factors in R. 57.01(1) of Rules of Civil Procedure to this case and noting egregious nature of appellant’s conduct, elevated cost awarded was fair and reasonable in all circumstances of this case. This was not case where cost award would adversely impact on access to justice issues. On contrary, elevated cost award was necessary to deter appellant from using court system to adjudicate frivolous claims.

Elbasiouni v. Brampton (City) (2017), 2017 CarswellOnt 4876, 2017 ONSC 2088, Barnes J. (Ont. S.C.J.); additional reasons (2015), 2015 CarswellOnt 15057, 2015 ONSC 6149, Barnes J. (Ont. S.C.J.).

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