Court File and Parties

CITATION: Kew v. Vanderspek, 2022 ONSC 2528

DIVISIONAL COURT FILE NO.: 20-000017-0000

DATE: 2022/04/28

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Jo Ann Elaine Kew and Richard James Kew Plaintiffs/Appellants

AND:

Barbara Theol Vanderspek and Paul Vanderspek, Defendants/Respondents

BEFORE: Sachs, Stewart and Newton JJ.

COUNSEL: Martha Cook, for the Appellants

Paul Vanderspek (self-represented), for the Respondents

HEARD at London by videoconference: April 25, 2022

Endorsement

[1] This is an appeal of the costs order of Templeton J. dated August 19, 2019.

[2] The costs order arose out of a summary judgment motion where the Appellants were granted an injunction restraining the Respondents from using a wood stove that they had constructed on their property and damages in the amount of $1500.00 for nuisance. The motion judge found that each party should bear their own costs.

[3] Costs orders are discretionary orders that are entitled to considerable deference on appeal. Absent an error in principle or a demonstration that the order was clearly wrong a costs order should not be interfered with.

[4] In this case the Respondents offered to consent to an injunction as soon as the Appellants commenced their action. All their subsequent offers to settle made this clear. The last one before the summary judgment motion was heard also offered to pay the Appellants damages in the amount of $1000.00.

[5] The Appellants argue that the motion judge erred in principle because she denied costs to the successful party. In our view, given that the Appellants claimed $60,000.00 in damages from the Defendants and were only awarded $1500.00 they can hardly be described as the successful party. It is true that they also obtained an injunction, but the Defendants were always prepared to agree to such relief.

[6] The Appellants have failed to reach the high threshold necessary to demonstrate that the motion judge’s order as to costs should be set aside.

[7] For these reasons the appeal is dismissed.

[8] The Respondents, while they did not have a lawyer for the appeal, did retain a lawyer to file materials on the leave to appeal application. That lawyer charged them approximately $2300.00. The Respondents are entitled to their partial indemnity costs for the leave to appeal, fixed in the amount of $1500.00, all inclusive.

Sachs J.

I agree _______________________________ Stewart J.

I agree _______________________________ Newton J.

Date: April 28, 2022