Frank Pignoli

Following a successful trial concerning the interpretation of a registered easement agreement, the successful applicant sought costs on a substantial indemnity basis exceeding $98,000.

The respondents argued no costs should be awarded, relying on an arbitration clause in the agreement and a prior consent order, and alternatively sought reduced partial indemnity costs.

The court held the arbitration clause had effectively been waived by the parties’ consent to litigate the dispute and affirmed the principle that a successful party is generally entitled to costs.

Applying Rule 49.10(1) of the Rules of Civil Procedure and considering Rule 57.01 factors, the court awarded partial indemnity costs to the date of the offer to settle and substantial indemnity costs thereafter.

A global costs award of $85,000 inclusive of disbursements and taxes was ordered.

The applicant sought declaratory and injunctive relief concerning the scope of a registered easement over her property used as part of a shared laneway servicing several subdivided residential lots.

The respondents claimed the easement allowed them to excavate the applicant’s land, construct a driveway to their garage, and park vehicles there.

The court interpreted the express easement agreement governing the subdivision and held that the right of way was limited to vehicular passage along the common lane and the installation and maintenance of service lines.

Ancillary rights could be implied only where necessary for the use of the easement, not merely convenient.

The respondents’ driveway construction, grading alterations, and parking exceeded the scope of the easement and interfered with the servient tenement.

Declaratory relief, restoration orders, and a permanent injunction were granted.