



COURT OF APPEAL FOR ONTARIO

CITATION: Detlor v. Brantford (City), 2013
    ONCA 688

DATE: 20131112

DOCKET: C53084

Doherty, Laskin and Simmons JJ.A.

BETWEEN

Aaron Detlor and The Haudenosaunee Development
    Institute

Applicants (Appellants)

and

Corporation of the City of Brantford

Respondent (Respondent)

BETWEEN

Hazel Hill

Applicant (Appellant)

and

Corporation of the City of Brantford

Respondent (Respondent)

BETWEEN

Ruby Montour and Floyd Montour

Applicants

and

Corporation of the City of Brantford

Respondent (Respondent)

Louis C. Sokolov and Jessica Orkin, for the appellants, Aaron
    Detlor, The Haudenosaunee Development Institute and Hazel Hill

Neal Smitheman, W. Thomas Barlow and Tracy A. Pratt, for
    the respondent, The Corporation of the City of Brantford

Michael Beggs, for the intervener the Attorney General
    of Canada

Heard: January 17, 2013

On appeal from the order of Justice Harrison S. Arrell of
    the Superior Court of Justice, dated November 19, 2010.

COSTS ENDORSEMENT

[1]

The appellants submit that success on the appeal was divided. 
    Therefore, they submit that:

(a)

We should order no costs of the
    appeal; and

(b)

We should reduce the costs
    ordered by Arrell J. by $117,000.00  from $350,000.00 to $233,000.00. The
    appellants attribute the $117,000.00 to the by-laws application and the
    remaining $233,000.00 to the injunction motion.  Consistent with their position
    that there should be no costs of the appeal because success was divided, they
    say that no costs should be ordered for the by-laws application.

[2]

The City of Brantford contends that as we dismissed the appeal with
    minor modifications, it was the successful party on the appeal.  Therefore,
    Brantford submits that:

(a)

It is entitled to costs of the
    appeal on a partially indemnity basis.  It asks for $68,000.00; and

(b)

The costs ordered by Arrell J.
    should not be reduced.

Costs of the Appeal

[3]

We agree that Brantford was substantially successful on the appeal and
    is therefore entitled to costs of the appeal.  However, although we upheld
    almost all of the impugned provisions of the two by-laws, the appellants did
    obtain some limited relief.  We struck the ban on signs on the ground it
    infringed s. 2(b) of the
Charter
and could not be justified under s.
    1.  Further, Brantford conceded in oral argument that the prohibitions on the
    words request and invite in by-law 64-2008 could not be justified, and we
    struck those offending words from the by-laws.

[4]

Because the appellants did achieve modest success on the appeal, we
    think it appropriate to reduce the costs Brantford would otherwise be entitled
    to.  A fair and reasonable figure for the costs of the appeal is $25,000.00 all
    inclusive.

Costs before Arrell J.

[5]

Brantford was successful on the injunction motion, which was the main
    proceeding before Arrell J., and, in the light of our decision, almost, though
    not entirely successful, in resisting the appellants challenge to the two
    by-laws.  In these circumstances, we are not persuaded that we should reduce
    the costs ordered by Arrell J. in the exercise of his discretion.  His award
    seems fair and reasonable to us, even taking account of this Courts decision. 
    Accordingly, we decline to disturb his award.

Doherty J.A.

John Laskin J.A.

Janet M.
    Simmsons J.A.


