Hilary Brown

The respondent, having successfully defended an application regarding a prescriptive easement and property damage, sought partial indemnity costs of $62,755.63.

The applicant opposed the quantum, arguing the file was overworked and the rates were excessive, noting her own costs would have been approximately $18,000.

The court agreed that the costs claimed exceeded what an unsuccessful party could reasonably expect to pay for this type of litigation.

Costs were assessed and awarded to the respondent in the amount of $40,000 all inclusive.

The applicant sought a declaration of a prescriptive easement over a passageway on the respondent's adjoining property and damages for the pruning of an overhanging tree limb.

The court found that the historical use of the passageway by the applicant's predecessors was permissive and neighbourly, not 'as of right', and thus no prescriptive easement was established.

The court also dismissed the claim for damages, holding that the respondent was legally entitled at common law to prune the overhanging branches of the applicant's tree that intruded onto her property.