Court of Appeal for Ontario

Date: 2018-11-22 Docket: C62945

Judges: Simmons, Miller and Fairburn JJ.A.

Between

Peter Majewsky Plaintiff (Respondent)

and

Juris Veveris and Christina Miller-Veveris and Stewart Title Guaranty Company Defendants (Appellants)

Counsel

Marvin J. Huberman, for the appellants

Ryan Breedon, for the respondent

Heard

September 26, 2018

Appeal Information

On appeal from the judgment of Justice M.J. Donohue of the Superior Court of Justice, dated October 11, 2016, with reasons reported at 2016 ONSC 5608.

Costs Endorsement

[1] In a judgment dated October 24, 2018, we allowed the appellants' appeal in part by setting aside the trial judge's finding that the respondent was entitled to a prescriptive easement over a cedar trail that encroached on the appellants' land and dismissing the respondent's action in that respect. We dismissed the balance of the appellants' appeal in which they sought to set aside the trial judge's findings that the respondent had acquired possessory title to the "house lands" and a prescriptive easement over a portion of a laneway. We awarded costs of the appeal to the respondent in the amount of $10,000 and invited the parties to make submissions concerning the costs award in the court below. This is our decision concerning that award.

[2] The trial judge's order that the respondent is entitled to costs of $42,954.63 is varied to provide that the respondent is entitled to costs of $32,000. Although we set aside the trial judge's finding that the respondent was entitled to a prescriptive easement over the cedar trail, overall, the respondent still bettered the offer to settle on which the trial judge relied in awarding costs. Further, although the respondent's claim to a prescriptive easement over the cedar trail was a significant aspect of his claim, it paled in comparison to his claims to adverse possession of the house lands and a prescriptive easement over a portion of the laneway.

Janet Simmons J.A.

B.W. Miller J.A.

Fairburn J.A.