Sarah Hahn

Following a successful application confirming user in common rights on a subdivision plan, the applicants sought costs of $51,593.86.

The respondent landowners argued the amount was excessive for a one-day hearing.

The respondent municipality also sought costs against the respondent landowners.

The court awarded the applicants $45,000 in partial indemnity costs, finding the claimed amount excessive despite the complexity of the historical real estate issues.

The municipality was awarded $2,500 in costs for its helpful submissions, though its costs were reduced because it remained adverse in interest to the applicants until the morning of the hearing.

The applicants, owners of lots on a 1950 plan of subdivision, sought a declaration that certain lots designated as an 'area of user common to each property owner' remained subject to those rights.

The respondent owners of the fee simple in those common lots argued the rights had expired under the Registry Act and were extinguished upon conversion to the Land Titles system.

The court held that the dedication created valid, subsisting quasi-public rights and easements that were openly enjoyed and thus saved from expiry under the Registry Act.

The court declared the lands remain subject to the applicants' rights and prohibited the respondents from interfering with them.