



COURT OF APPEAL FOR ONTARIO

CITATION: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA
    400

DATE: 20180425

DOCKET: C63305 and C63351

Doherty, Brown and Nordheimer JJ.A.

BETWEEN

David Schnarr

Plaintiff (Respondent)

and

Blue Mountain Resorts Limited

Defendant (Appellant)

AND BETWEEN

Elizabeth Woodhouse

Plaintiff (Appellant/

Respondent by
    cross-appeal)

and

Snow Valley Resorts (1987) Ltd. Aka Snow Valley
    (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350
    Ontario Ltd.

Defendants (Respondents/

Appellants by
    cross-appeal)

John A. Olah, for the appellant, Blue Mountain Resorts
    Limited

Edward Chadderton and Jeffery Beleskey, for the
    respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. Aka
    Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley,
    and 717350 Ontario Ltd. (collectively, Snow Valley)

Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for
    the respondent, David Schnarr and for the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse

Heard: February 7-8, 2018

On appeal from the orders of
    Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with
    reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior
    Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

COSTS ENDORSEMENT

[1]

On March 28, 2018, this court released its decision allowing both appeals
    and the cross-appeal, setting aside the two orders below, and remitting the
    matters back to the Superior Court of Justice to proceed in accordance with this
    courts reasons.  We invited the parties (other than the interveners) to make
    submissions on the issue of the costs of the appeal.  We have now received and
    reviewed those submissions.

[2]

The appellant, Blue Mountain, submits that there should be no order as
    to costs given the novelty of the legal issues raised in these appeals.  The
    respondent, David Schnarr and the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse, make the same submission. The Snow Valley
    respondents/appellants by cross-appeal submit that costs should be awarded to
    them on a partial indemnity basis in the sum of $25,000.

[3]

In our view, there should not be any award of costs of the appeal.  These
    proceedings are properly characterized as public interest litigation.  They
    raised novel issues regarding the interplay between two provincial statutes.  As
    such, in our view, Mr. Schnarr and Ms. Woodhouse fall within the second
    category of public interest litigation as set out in
Odhavji Estate v.
    Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, namely, they are litigants
    who have a pecuniary interest in the litigation but whose interests are modest
    in comparison to the cost of the proceedings.  By the cost of the proceedings,
    in this context, we mean the ambit or scope of the proceedings.  There was a
    much broader public interest involved in this case than the individual claims
    of Mr. Schnarr and Ms. Woodhouse, as the nature and number of interveners
    demonstrates.  It is also appropriate, in cases where a novel question of
    statutory interpretation is involved, to make no order as to costs:
Dam
    Investments Inc. v. Ontario (Minister of Finance)
,
2007 ONCA 527, 226
    O.A.C. 40;
Hare v. Hare
(2006), 83 O.R. (3d) 766 (C.A.).

[4]

Consequently, there will be no order for costs of the appeals.

Doherty J.A.

David Brown J.A.

I.V.B. Nordheimer J.A.


