Jennifer Parker

Following a judgment where Vivekanandan successfully established an easement and adverse possession over a disputed area, they sought costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure.

The court declined to award substantial indemnity, noting that Rule 49.10 is more appropriately applied to monetary judgments and that Vivekanandan was not entirely successful on all aspects of their claim.

The court awarded costs on a partial indemnity basis, finding the requested amount of $93,107.99 (including fees, HST, and disbursements) to be reasonable given the complexity and effort involved in the property title litigation, consistent with the principle of indemnity and reasonable expectations.

The parties are neighbours involved in a property boundary dispute over a strip of land between their houses.

The disputed land consists of a Driveway Area and a Backyard Area, both of which are registered to the applicant's property but have been used by the respondents and their predecessors in title.

The court found that the respondents' predecessors had established a prescriptive easement over the Driveway Area through 20 years of continuous, open, and uninterrupted use prior to the property's conversion to the Land Titles system.

The court also found that the respondents acquired title to the Backyard Area through adverse possession, as their predecessors had exclusively enclosed and occupied the area for the requisite statutory period.

The respondents' counter-application was granted.