ONTARIO
SUPERIOR COURT OF JUSTICE
WELLAND COURT FILE NO.: 3407/11
DATE: 2012/07/18
BETWEE N:
ROBERT DONALD MCCORMACK and MARK DAVID MCCORMACK
Robert W. Dowhan, for the Applicants
Applicants
- and -
ANTHONY CIAMPANELLI, ROYTON INDUSTRIES LTD., STIPAN GROUP INC. and PENFINANCIAL CREDIT UNION LIMITED
Wolfgang J. Pazulla, for the Respondent, Royton Industries Ltd. and Stipan Group Inc.
Respondent
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[ 1 ] The Applicants sought a declaration that title to the land of the Respondent (Royton Industries) is subject to a right of way in favour of the Applicants and for an order directing the Land Registrar to rectify the Register by amending the legal description of the respective lands to include “together with a right of way” on the dominant land and “subject to a right of way” on the servient land.
[ 2 ] The Application was argued on February 21, 2012. My reasons were released on May 21, 2012 and the Applicants were entirely successful.
[ 3 ] As the parties were unable to agree on the issue of costs, written submissions have now been received.
Positions of the Parties
[ 4 ] The Applicants request costs of the Application on a partial indemnity basis in the amount of $13,766.20 inclusive of fees and HST and disbursements ($1,524.91).
[ 5 ] The Respondents (Royton Industries Ltd. and Stipan Group Inc.) submit that there should be no order as to costs. If there is an Order for costs, it is submitted that this was not an overly complex matter and that the fees are excessive and the cost award should be substantially less than requested by the Applicants.
Order
[ 6 ] Rule 57.01 of the Rules of Civil Procedure sets out the general principles to be considered in making a cost order.
[ 7 ] As the successful party, the Applicant is presumed to be entitled to costs and there is no reason that they should be deprived of same. This was an important issue and was somewhat complex, given the history of the dealings with the relevant property. Even though the submissions were limited to one-half of a day, time was necessarily spent in the preparation of the material, including a lengthy Factum and Books of Authorities.
[ 8 ] However, I agree with the Respondents’ counsel, that some of the time claimed to have been spent by the Applicants’ solicitor was unwarranted. The time shown as spent on preparation of the materials, preparation for the hearing, and the two attendances on the hearing were excessive. Similarly and to the extent that some of the time spent related to service on other Respondents, who did not oppose the Application, these are not costs that should be paid by these Respondents.
[ 9 ] In fixing costs, it is not simply a mechanical exercise of calculating the hours spent by the hourly rates shown. Rather, the objective is to arrive at an amount that is fair and reasonable for the unsuccessful party to pay ( Boucher v. Public Accountants Council for the Province of Ontario (2004) 2004 14579 (ON CA) , 71 O.R. (3d) 291 (C.A.).
[ 10 ] After reviewing the Bill of Costs as submitted and the written submissions, and considering the factors set out in Rule 57.01, the Applicants are entitled to partial indemnity costs as against the Respondents (Royton Industries Ltd. and Stipan Group Inc) in the amount of $9,000.00 inclusive of disbursements and HST.
MacPherson J.
Released: July 18, 2012
WELLAND COURT FILE NO.: 3407/11
DATE: 2012/07/18
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ROBERT DONALD MCCORMACK and MARK DAVID MCCORMACK Applicants - and - ANTHONY CIAMPANELLI, ROYTON INDUSTRIES LTD., STIPAN GROUP INC. and PENFINANCIAL CREDIT UNION LIMITED Respondent COSTS ENDORSEMENT MacPherson J.
Released: July 18, 2012