Duncan Boardman

Following an endorsement determining the underlying application, the court considered written submissions on costs.

Both parties had served offers to settle, but neither offer produced a result more favourable than the court’s decision, so Rule 49 of the Rules of Civil Procedure did not affect the costs analysis.

The successful applicants sought costs on a partial indemnity basis totaling just over $31,500 inclusive of disbursements and tax.

The respondent requested an opportunity to have the applicants’ bill assessed but provided no substantive basis to challenge the hourly rates, hours worked, or disbursements.

Applying the factors in Rule 57.01 and the fairness considerations articulated in Boucher v Public Accountants Council (Ontario), the court found the claimed costs reasonable and awarded the requested amount.

The applicants and respondent are neighbours involved in a boundary dispute over a shared driveway and a triangular piece of land.

The respondent claimed possessory title to the triangle through adverse possession, while the applicants sought a declaration of ownership and the removal of fences and interlocking brick installed by the respondent on their property.

The court found that the respondent's adverse possession claim failed because the previous registered owner had interrupted the exclusive possession by entering the land to cut down trees before the 10-year statutory period expired and prior to the property's conversion to the Land Titles system.

The court granted the applicants' request for a declaration of ownership and ordered the respondent to remove the trespassing structures.