Superior Court of Justice - Ontario

Court File No.: 11-30034
Date: 2012-04-04

RE: Diane Clark, Applicant

AND:
Kayliegh Kwasney also known as Kayleigh Wilczynski and Piotr Wilczynski, Respondents

Before: The Honourable Robert B. Reid

Counsel:
Michael Bordin, Counsel, for the Applicant
Ian Brisbin, Counsel, for the Respondents

Heard: February 21, 2012

Costs Endorsement

[ 1 ] This application concerned a residential border dispute between the parties, framed as an adverse possession claim by the applicant.

[ 2 ] The dispute related to a strip of land along the south side of the property at 151 Laurier Avenue in Hamilton. The rear yards of the adjoining properties were divided by a fence and in my decision dated March 12, 2012, I determined that the applicant had established adverse possession in accordance with the fence line to a thin strip of land which at its maximum represented an encroachment by the applicant on the respondents’ property of approximately .4 m.

[ 3 ] The dispute also related to a wedge of land in the side and front yard areas of the adjoining properties. At its widest, this wedge of land was estimated to be in excess of 2 m. It was the respondents’ intended use of that portion of the property to facilitate a driveway widening that led to the litigation. I consider that the side and front yard area was the more contentious portion of the claim for several reasons. As between the two, it was the largest area. It was the more prominent of the two in terms of visual effect on the properties, given that the area was obvious from the street. The potential for use of the disputed side and front yard area by the successful party was significantly greater than the rear yard area in dispute.

[ 4 ] In my decision, I determined that the applicant had not established adverse possession to the wedge of land in the front and side yard. As result, it is fair to say that success was divided as between the parties, but that on the more significant of the two disputed portions of property, the respondents were successful.

[ 5 ] An interim injunction was granted in the course of the application preventing the respondent from working on or altering the disputed property until the claim was resolved. Although the applicant was successful on the injunction motion, I do not consider that result to be significant in this costs award given my decision on the merits, particularly since the work on the front and side yards by the respondents based on their ultimately successful assertion of ownership to that area was the main reason for the injunction motion.

[ 6 ] There were no offers to settle or other reasons to consider a costs award other than on a partial indemnity basis.

[ 7 ] The respondents have submitted that their partial indemnity costs total approximately $14,306 inclusive of HST and disbursements. The applicant's partial indemnity costs are said to be approximately $10,240. The difference is almost entirely accounted for by the respective hourly rates charged, given that the total hours expended are very similar. I have no reason to criticize the hourly rates of either counsel and the proportionality principle leads me to conclude that both parties would have had a similar expectation as to costs in the event of success or failure of their positions.

[ 8 ] Given the divided success in the application, but with the most significant area of dispute being determined in favour of the respondents, it is my view that the respondents should receive from the plaintiff a portion of their partial indemnity costs.

[ 9 ] As a result, I am awarding costs to the respondents in the amount of $6000 inclusive of HST and disbursements, payable by the applicant within 30 days.

Reid J.
Date: April 4, 2012