SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 248/11
DATE: 20120227

RE: DAVID ALBERT WALKER and KATHRYN MOONEY

Applicants

v.

DAVID D’AURIA and MICHELLE D’AURIA

Respondents

BEFORE: O’CONNOR J.

COUNSEL: Trenton D. Johnson, for the Applicants

Robert K. Brown, for the Respondents

COSTS ENDORSEMENT

[ 1 ] The parties are rural neighbours. In 1911 the Respondents’ predecessors in title registered a 33 foot wide right-of-way on their land in favour of the owners of the Applicants’ land. It ran the 300 foot length of their property line from the concession road to lands across the rear of their property formerly owned by a railway company. The right-of-way is located adjacent to the property line between the parties’ lands. A dispute between the parties arose over the use the Applicants could make of the right-of-way.

[ 2 ] The Applicants were successful in obtaining a declaration that supported their interpretation of the use they could make of it, that is, they may access their lands at any point along the right-of-way, and not just at the end abutting the railway lands (now a rail trial).

[ 3 ] The Applicants seek costs of the proceeding on a partial indemnity basis in the amount of $17,743.81 inclusive of fees, disbursements and HST.

[ 4 ] They point to their efforts to negotiate a settlement and/or refer the matter to mediation to resolve the issue. The Respondents rejected mediation as being too expensive and both parties rejected the settlement position of the other.

[ 5 ] The Respondents argue the Applicants were not successful on one of the bases of their claim. The Applicants were unable to prove a prescriptive right to the 33 foot strip. Thus, the Respondents say, there was divided success.

[ 6 ] The Respondents also argue that although the Applicants were successful, it was a close call. Further, the parties now have clarity as to their respective property rights. They also argue that the dispute arose in part because of a changing use the Applicants wish to make of the property.

[ 7 ] I cannot agree with the Respondents’ position that the difficulties between the parties were caused not by the litigants, but by the confusing historical descriptions over the years of the right-of-way. The descriptions were not significantly different from deed to deed. The differences between these neighbours were caused primarily by the intransigence of both parties, but particularly the Respondents, in belligerently adhering to their respective positions without any thought of compromise.

[ 8 ] The Applicants indicate that six people contributed time and effort to the file, including two partners of their firm, two students-at-law and two law clerks. Combined they spent 85.2 hours of which 64.1 hours were partner time. I find this total excessive given that it includes only one attendance at a cross-examination, one attendance to argue the application and given the relatively narrow issues to be argued. The billing rates of the lawyers and staff, however, are reasonable, even modest. The disbursements are in order.

[ 9 ] In all of the circumstances, the Applicants shall have their costs fixed at $9,464.44 for fees plus $1,701.60 for disbursements plus HST of $1,451.59 on both, for a total of $12,617.62. (The fees figure is two-thirds of that claimed.)

O’CONNOR J.

DATE: February 27, 2012