AWARE Simcoe hit with order to pay $32,000 in fixed costs for Beeton woods review

New Tecumseth Free Press Online

Ontario Superior Court Justice Eberhard today issued an order that will require Aware-Simcoe to pay Tecumseth Estates a fixed cost of $27,000 “in priority to any costs payable to the County,” which was awarded $5,000.

In her ruling released today, Justice Eberhard said Tecumseth Estates “was put through a considerable process by the Respondent County and has been fully compliant. Thereby faultless the Respondent landowner also succeeded in this litigation which was generated not by its mistake but the procedural errors of the County, both in 2012 and 2015, which the Applicants used as the basis for their litigation claim. The Respondent landowner had to participate in the dispute before the court which made its position vulnerable despite full compliance with everything the County had required. The landowner should have costs for the expense of litigation it did not generate but could not stand by and simply watch for fear that its interests would be defeated.”

Tecumseh Estates Inc. claimed costs of partial – $24,050; substantial – $27 ,850; and full – $32,947. Plus disbursements of$1763.07 and HST. The County claimed costs of partial – $15,709.33; substantial – $19,962.86; and full – $23,485.70. plus disbursements of $213.28.

The Justice noted that while the County “acted responsibly” it “floundered procedurally” which provided Aware-Simcoe the opportunity to use the courts against Tecumseth Estates.

“I find it irresponsible, perhaps even disingenuous, for an unsuccessful litigant to hide behind lack of funds as grounds for denying an order for costs having earlier asserted that it could
meet undertaking requirements.”

“In this instance of a fully compliant landowner who had met the public interest concerns put forth by the County over several years; and a group of publicly minded citizens who were never able to elevate their views to the level of evidence of a public importance; I find that the landowner is not “trumped,” Justice Eberhard wrote. “I considered ordering the County to pay some portion of Tecumseh Estates Inc’s costs because of my finding that the County’s floundering generated opportunity for the dispute to escalate into litigation. Instead, looking at the circumstances of the parties as a whole, I order that Tecumseh Estates Inc. should have priority to any enforceable costs.”