City of Burlington must pay $120,000 in Airpark court costs

The City of Burlington is on the hook to pay $120,000 in court costs to the Burlington Executive Airpark, an Ontario court of appeal has ruled.

The decision came down on Aug. 25 from justices Robert J. Sharpe, Kathryn N. Feldman and L.B. Roberts, who presided over the appeal case this spring at Osgoode Hall in Toronto.

“This decision helps close a very rocky chapter for both the airport and the city and we look forward to moving forward with the city in a beneficial way that helps the airport serve Burlington and be a world-class facility that the community can be proud of,” airport owner Vince Rossi said this week.

On May 24, a provincial Court of Appeal judge ruled in favour of the Burlington airport in its long battle with the city relating to landfill trucked into the northeast airport over a five-year period.

The local airport had appealed a Superior Court ruling from June 30, 2016 favouring the city’s effort to make it file a site alteration permit for fill dumped at Burlington Airpark from 2008 to 2013.

Residents had contacted city council with concerns of flooding, drainage, views being blocked and the potential for contamination.

A 2014 site alteration bylaw regulates the placing, dumping, cutting and removal of fill or the alteration of grades or drainage on a piece of land. Those doing that type of work must first submit an application to the city for a site alteration permit.

The airport had been trucking in fill to elevate a part of its property in order to expand.

With the ruling in May of the appeal court decision falling in its favour, the local airport was no longer on the hook to pay the city $118,327.53 in court costs, originally ordered by the province’s Superior Court of Justice in November 2016.

Since neither side’s legal teams could agree on the costs of the original application, the appeal court was charged with deciding the amount. The appeal judges found the city owed the airport $80,000 for the application, in addition to the $40,000 for the appeal.

“In view of our conclusion on the merits of this appeal, we are not persuaded that the application judge’s adverse findings against Airpark are a sufficient reason to deny Airpark its costs of the application,” the judges stated in their decision.

“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 per cent higher than the substantial indemnity costs it incurred, particularly as the City was the applicant,” the decision continued.

“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.”