P.D.S. Jackson

Following the dismissal of the applicants' application, the respondents sought costs.

One respondent settled their costs claim, while the other, represented by pro bono counsel, sought substantial indemnity costs due to the applicants' conduct.

The court held that pro bono representation does not preclude a costs award and that ordinary costs rules apply.

The court found the applicants' conduct expanded the litigation but did not rise to the level of reprehensible conduct required for substantial indemnity.

The court awarded partial indemnity costs to the pro bono respondent in the amount of $84,836.79.

The applicants sought a declaration of exclusive use over a right-of-way (ROW) connected to their property and permanent injunctions against the Ontario Heritage Trust (OHT) and Nicola Ross.

The OHT, as the servient tenement owner, permitted public access to the ROW, which also served as access to the Bruce Trail.

The court dismissed the application, finding that the easement did not grant exclusive use to the applicants and that there was no substantial interference with their rights.

The court also found the applicants lacked "clean hands" due to misleading evidence and dismissed the injunction claim against Ms. Ross, noting her statements were consistent with OHT's position and not made with malice.