COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Cole, 2013 ONCA 201

DATE: 20130402

DOCKET: C55844

MacFarland, Rouleau and Pepall JJ.A.

BETWEEN

Lourdes Singh in Trust, Lourdes Singh and Binod Singh

Plaintiffs (Appellants)

and

David Cole, James Wickens, Paul Ross, Catherine Clemens, Karen Clemens, Nancy Clemens, James Clemens, the Estate of Judith Thrasher, Deceased, by Her Estate Trustee, Garrett John Thrasher

Defendants (Respondents)

and

Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Natural Resources

Third Party (Respondent)

Counsel:

Sam Cosentino, for the plaintiffs/appellants Singh

Robert J. Fenn for the respondents, Clemens and Ross

Izaak De Rijcke, for the defendant/respondent, the estate of Judith Thrasher

Dave Vickers, for the respondent (third party), Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Natural Resources

Gavin Smyth, for the defendants/respondents, David Cole and James Wickens

Heard and released orally: March 25, 2013

On appeal from the order of Justice Carole J. Brown of the Superior Court of Justice, dated December 21, 2011 (incorporating her decisions of December 21, 2011 and March 15, 2012).

ENDORSEMENT

[1] The appellants and the respondents are involved in long standing litigation concerning the boundaries that exist among three islands and part of a fourth island in Lake Huron.

[2] The islands were once separated by the waters of Lake Huron. Over the years the lake level has receded and what were once four separate islands, as that term is commonly understood, are now part of a larger land mass that includes what was once lake bottom. The ownership of this now partially exposed lake bottom is the subject of the litigation.

[3] The appellants are the current owners of Island 11. The respondents Cole and Wickens are their predecessors in title. The respondent Ross is the current owner of part of Cranberry Island. The respondents Clemens are the current owners of Island 11A and the estate of Judith Thrasher, the owner of Island 11D.

[4] During the course of the litigation, Thrasher accepted the appellants’ settlement offer dated February 14, 2011. Thereafter the appellants submitted to Thrasher several consent orders, which purported to reflect the settlement agreement between themselves and Thrasher. Thrasher signed the necessary consent. All of the proposed draft orders expanded on the terms of the agreement and as the motion judge noted in paragraph 35 of her reasons, several provisions contained in the draft orders may have had “the effect of determining certain boundaries in issue or limiting or restricting ownership, easements and rights-of-way of the other co-defendants in the broader litigation.”

[5] The litigation, which has been ongoing since 2000, concerns boundary disputes among the current and previous owners of Island 11 and the current owners of part of Cranberry Island, Island 11A and Island 11D. While it was open to the appellants and Thrasher to resolve aspects of the lis between them, it was not open to them to do so in a way that affected the rights and/or obligations of the other parties to the litigation.

[6] The motion judge appreciated the issues among the parties and the effect that the appellants’ effort to enforce the agreement could have on the overall litigation were she to accede to their motion and grant the declarations contemplated by the terms of the settlement.

[7] In our view, her order was correct in the circumstances of the particular case.

[8] The settlement agreement remains and, as between the appellants and Thrasher, the appellants can, of course, plead and rely on that agreement in the overall litigation. We also note that the application judge’s order in paragraph 4 thereof dismissed Thrasher’s counterclaim including her request for a right of way.

[9] As found by the motion judge any order resulting from the settlement between the appellants and Thrasher should not affect the issues as among the appellants and the other defendant respondents. As a result, the appeal is dismissed.

[10] As to costs, leave is granted to appeal the costs orders made against the appellants on the application. We see no error in the costs award made to Thrasher. Given the date of the offer to settle made by Ross and Clemens, the quantum of the substantial indemnity costs awarded to them was excessive and we would reduce those costs from $20,033.45 to $15,000.00 all inclusive.

[11] As for the award to Cole and Wickens, we see no basis upon which the motion judge could have awarded substantial indemnity costs and we note that no materials were filed by them. Accordingly, we would reduce those costs to $1500 all inclusive.

[12] Costs of the appeal are awarded to Clemens and Ross in the sum of $10,000; to Thrasher, in the sum of $7,000; and to Cole and Wickens, in the sum of $1,000. All amounts are inclusive of disbursements and applicable taxes.

“J. MacFarland J.A.”

“Paul Rouleau J.A.”

“S. E. Pepall J.A.”