Nicolas P. Katsepontes

Following dismissal of an application seeking removal of a fence demarcating a right of way, the court determined the appropriate costs award.

The successful respondent sought substantial indemnity costs exceeding $30,000, arguing the applicant pursued untenable legal positions and rejected reasonable settlement offers.

The court held that while the respondent was entirely successful and entitled to costs, the case was not sufficiently exceptional to justify substantial indemnity costs.

Applying the principles of reasonableness under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the claimed amounts and fixed costs at a fair and reasonable level.

The applicant property owner sought a declaration allowing her to remove a fence and erect locked gates on a right of way located on her property, which was used by the respondent embassy to access its rear parking lot.

The court found that the issue of the fence was res judicata due to a 1992 court order mandating its installation.

Furthermore, applying the principles of easement law, the court held that erecting locked gates would substantially interfere with the respondent's unimpeded access to its property, which had been established by historical use and previous agreements.

The application was dismissed.