A. Simovanian

The court rendered a costs decision following a successful motion by the defendant to terminate a temporary injunction.

The defendant sought substantial indemnity costs, while the plaintiff argued for costs in the cause or on an actual indemnity basis.

The court found the defendant to be the successful party and awarded costs on a partial indemnity basis, rejecting the defendant's request for substantial indemnity due to over-resourcing and animosity in submissions.

The court also declined to award costs personally against the plaintiff's counsel, finding their conduct did not meet the high threshold for such an order.

Costs were fixed at $17,263.01, payable by the plaintiff to the defendant within 30 days.

The plaintiff sought to continue a temporary injunction preventing the defendant from restricting access to a water well on the defendant's property, which supplied water to the plaintiff's adjacent property.

The defendant brought a cross-motion to prohibit the plaintiff's entry, declare no easement right, and set aside the injunction.

The court applied the RJR MacDonald and R. v. CBC tests for injunctions, specifically focusing on the "strong prima facie case" criterion.

The court found that the plaintiff failed to demonstrate a strong prima facie case for an implied easement of accommodation or an easement based on common intention, primarily because the requested easement would require positive acts of maintenance and expense from the defendant, which cannot form the subject matter of an easement without privity of contract.

Consequently, the temporary injunction was terminated.