



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 judges 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.


