Decision No. 98-R-2010

March 24, 2010

APPLICATION by the West Toronto Diamond Community Group for an award of costs.

File No. R8030/T1/09-1

Application

[1] On January 28, 2010, the West Toronto Diamond Community Group (WTDCG), pursuant to section 25.1 of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA), filed submissions with the Canadian Transportation Agency (Agency) in support of its application for an award of costs relating to its participation in an Agency proceeding which was withdrawn.

Background

[2] On December 7, 2009, the Agency issued Decision No. 507-R-2009 pursuant to section 95.1 of the CTA. That Decision requires Metrolinx, operating as GO Transit (GO Transit) to implement corrective measures to ensure that the noise and vibration levels are reasonable with respect to its construction of the West Toronto Diamond Grade Separation.

[3] On December 21, 2009, GO Transit filed an application with the Agency pursuant to section 32 of the CTA for a review and stay of Decision No. 507-R-2009. On January 6, 2010, GO Transit applied to the Federal Court of Appeal for leave to appeal and for an interim stay of Decision No. 507-R-2009. On January 11, 2010, GO Transit advised the Agency that it was withdrawing its application before the Agency. On January 13, 2010, the Agency acknowledged GO Transit's withdrawal of its application for review and stay, and provided the WTDCG with the opportunity to make submissions on terms and conditions, including costs, with respect to the withdrawal.

[4] The WTDCG is seeking an award of costs for the work required to respond to GO Transit's application for a review and stay of Decision No. 507-R-2009.

Issue

[5] Should the Agency award costs to the WTDGC for its participation in the review and stay application filed by GO Transit?

Analysis and findings

[6] Pursuant to subsection 25.1(1) of the CTA, the Agency has all of the powers that the Federal Court has to award costs in a proceeding before it under the Federal Court Rules, notably under section 400. This section establishes that the Court has full discretionary power over the amount, the allocation of costs as well as the determination of by whom they are to be paid.

[7] The Agency has full discretion to award costs and, in the past, has relied on a set of general principles in determining whether to award costs, including whether the applicant for an award of costs has a substantial interest in the proceeding, has participated in the proceeding in a responsible manner, has made a significant contribution that is relevant to the proceeding, and has contributed to a better understanding of the issues by all parties before the Agency.

[8] In addition, the Agency may consider other factors, such as: the importance and complexity of the issues; the amount of work; the result of the proceeding; and whether the "public interest" in the proceeding justifies an award of costs. The Agency also finds that awards of costs are at times warranted to encourage effective participation in proceedings before the Agency.

[9] The Agency finds it appropriate to apply these principles in this case.

[10] The Agency notes that GO Transit's application was withdrawn at an early stage. As such, the Agency agrees with GO Transit that when strictly considering the application did not proceed beyond the initial stage of written argument by GO Transit, there may have been less work and procedural complexity compared to other cases in which the Agency has ordered costs. However, the Agency agrees with the WTDCG's submission that GO Transit's application for review and stay of the decision did raise complex legal principles which required legal-based preparation for prompt responses, as per GO Transit's request for an expedited process. The Agency accepts the WTDCG's submission that it required legal representation to ensure that it would not be placed in a position where it had to allow GO Transit's application to go unopposed and that legal representation was necessary to permit a full and fair participation in the proceedings.

[11] In the exercise of its discretion on the award of costs, the Agency may consider such factors it deems appropriate in the circumstances of the case, including the circumstances of prior and closely related proceedings.

[12] The application for review and stay of Decision No. 507-R-2009 is a proceeding separate and distinct from the proceeding leading to Decision No. 507-R-2009. However, as it is Decision No. 507-R-2009 that GO Transit was seeking to be reviewed and stayed, the two proceedings are necessarily closely related. The Agency agrees with the WTDCG's statement that it had to participate in the review and stay proceeding to protect its interest in ensuring that Decision No. 507-R-2009 be maintained.

[13] The Agency therefore finds it appropriate to take into consideration the circumstances of the proceeding leading to Decision No. 507-R-2009 in deciding whether to award costs in the review and stay proceeding.

[14] The Agency agrees with the WTDCG's statement that Decision No. 507-R-2009 is the leading case on railway construction through residential neighbourhoods and the balancing of interests under section 95.1 of the CTA. The Agency also agrees with the WTDCG that this is a matter of enormous public and precedential importance to all residents who may face railway construction through residential neighbourhoods and that it also has precedential importance in establishing a respondent's obligations to cause only such noise and vibration as is reasonable when constructing a railway, pursuant to section 95.1 of the CTA.

[15] The Agency notes that the WTDCG was established to file a community complaint regarding the negative impact GO Transit's construction was having on the living conditions of the Junction area of Toronto, and has sought only to improve the lives of the neighbourhood residents who have no other mechanism of obtaining compliance by GO Transit of its obligations under section 95.1 of the CTA. The Agency agrees with the WTDCG that it has had no pecuniary interest in the proceedings.

[16] As such, the Agency finds that the issues dealt with in Decision No. 507-R-2009, and thus the issues in the review and stay proceeding, were of importance and that it was accordingly in the public interest that the review and stay proceeding be litigated. The Agency finds that the importance of the matter and the public interest in having the matter litigated are such that in the particular circumstances of this case, these two factors warrant the award of costs, regardless of the fact that if considered separately, the application for review and stay may not have been complex and may not have involved a significant amount of work for the WTDCG as a result of the early withdrawal.

[17] The Agency also notes GO Transit's submission that because the City of Toronto had filed submissions that raised similar arguments to the WTDCG, there was another party capable of raising the issues of concern for the WTDCG. The Agency disagrees with GO Transit's submission. Although the City of Toronto was an interested party providing support to the WTDCG's position, the City of Toronto consistently made it clear that it in no way represented the WTDCG in any proceeding before the Agency.

[18] The Agency therefore determines that in this case, based on the "public interest" and the importance of the issues raised, costs should be awarded to the WTDCG for its participation in the proceeding related to the review and stay of Decision No. 507-R-2009.

[19] The Agency will appoint a taxing officer to determine the costs to be taxed and allowed. The Agency notes that both parties have already made submissions with respect to the quantum of the costs to be taxed, including submissions on whether the amounts should be awarded on a solicitor-and-client basis. The taxing officer will conduct a review of the submitted information, including the applicant's bill of costs and determine whether the Agency has received all the necessary documentation. The taxing officer will make a determination as to the amount to be paid to the applicant, including the issue as to whether the costs should be awarded, as requested by the WTDCG, on a solicitor-and-client basis.

Conclusion

[20] Based on the above findings, the Agency awards to the WTDCG the costs arising from its participation in the application by GO Transit for a review and stay, pursuant to section 32 of the CTA, of Agency decision No. 507-R-2009. In addition, the Agency, pursuant to subsection 25.1(3) of the CTA, appoints Raymon Kaduck as the taxing officer to determine the costs to be taxed and allowed, which shall be paid by GO Transit.

Members

• J. Mark MacKeigan
• Geoffrey C. Hare
• John Scott