COURT FILE NO.: 11-52130

DATE: 2012/12/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J. CLAUDE LAUZON, Plaintiff

AND

GAETAN LEMIEUX, Defendant

BEFORE: M. Linhares de Sousa J.

COUNSEL: Charles M. Gibson and Ian Houle, for the Plaintiff
Bruce F. Simpson, for the Defendant

HEARD: By Written Submissions

ENDORSEMENT with respect to costs

[ 1 ] This motion concerned issues of declaratory relief for a right-of-way over a mutual driveway on the adjacent properties of the parties and injunctive relief restraining the Defendant from interfering with the Plaintiff’s use of the driveway by ordering the removal of a barrier erected by the Defendant across the mutual driveway. On the motion the Plaintiff has been completely successful.

[ 2 ] With respect to the first question of the declaration of the existence of a right-of-way enjoyed by both parties in the mutual drive, it is acknowledged that this was admitted to by the Defendant but only on the day of the motion after some discussion. The second issue was argued on the motion.

[ 3 ] The Plaintiff seeks his costs of the motion on a substantial indemnity basis in the amount of $26,094.91. He has submitted his lawyers’ costs outline for that amount. The Defendant takes the position that, if any costs are awarded, the amount should be modest. The Defendant has chosen not to submit his lawyer’s bill of costs or a costs outline.

[ 4 ] Rule 57.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, enumerates the factors that this Court may consider in exercising its discretion to award a party to a motion his costs.

[ 5 ] There are a number of factors in the circumstances of this case that weigh in favour of the Plaintiff receiving his costs which are as follows.

[ 6 ] Firstly, the Plaintiff has been substantially successful on this motion.

[ 7 ] Secondly, only on the day of the motion, after much legal costs had already been expended, did the Defendant concede the declaratory relief being sought by the Plaintiff to the right-of-way on the parties’ mutual driveway between their adjacent properties. Counsel for the Defendant argues that this issue was a very complicated issue and continues to advance his position on this issue in his submissions on costs. Nevertheless, after reviewing all of the correspondence between counsel filed by counsel for the Defendant and statements made by counsel for the Defendant at the examinations of the Defendant (Costs Submissions of the Plaintiff, tab 6) it is clear that this issue should have been conceded long before the day of the motion. Its delay in coming clearly contributed to the legal costs incurred on this motion. Once this admission was made, there was no complexity to speak of to the last remaining issue on the motion.

[ 8 ] There is no question that the issues raised in this motion were important to both parties. For the Plaintiff it was important to ensure his property rights and ensure his right-of-way so as to access his property. For the Defendant it was important to ensure some measure of control as to who could access his property and to deal with what he considered nuisance access to his property. Apart from that there is no other general importance to this case. The question of nuisance has yet to be tried.

[ 9 ] In addition to the result of the proceedings, the court may also consider any offers to settle made in writing. The correspondence of counsel leading up to the hearing of this motion filed by both counsel indicates that as early as June 28, 2011, in a letter written by the Plaintiff’s counsel at the time to the Defendant directly, the Plaintiff was willing to consider a number of options to resolve the issue of the barrier Mr. Lemieux had constructed across the entrance of the mutual driveway, including terminating any acknowledgement of a right-of-way on the mutual driveway and equally dividing the driveway by way of a fence after a survey of the property (Costs Submissions of the Plaintiff, tab 3). Nothing came of this letter and the issue has been raised as to whether the Defendant or his counsel ever received this letter, although Defendant’s counsel makes reference to this letter in a later correspondence.

[ 10 ] By October 13, 2011, the Defendant had retained his own counsel. In a letter from his counsel, the Defendant raised the question of the existence of a legal right-of-way. His response to the Plaintiff’s existing suggestions for resolution was that the Defendant retain the barrier in front of the mutual driveway and that he give the Plaintiff a key. There was no photographic evidence before this Court to indicate that even with a key, the Plaintiff could have accessed his property through the mutual driveway.

[ 11 ] On November 29, 2011 and December 20, 2011, the Plaintiff made an offer to settle the legal dispute by having the parties abandon any claim of a right-of-way to the mutual driveway and divide equally the driveway by installing a fence in the middle after a survey.

[ 12 ] On February 15, 2012, the Plaintiff made the same offer as was made on the two previous occasions but more formally. In addition the offer was open for ten days without cost consequences and thereafter on the basis of the Defendant paying the Plaintiff his partial indemnity costs in relation to this motion which had been launched.

[ 13 ] Counsel for the Defendant responded to these various offers by way of numerous letters, essentially refusing the offer of the Plaintiff and reiterating that the Defendant was prepared to give the Plaintiff a key to the existing barrier. The Defendant took the same position after his counsel had received the motion materials on February 14, 2012, and that appeared to be the position of the Defendant going into the motion.

[ 14 ] Counsel for the Defendant submits that he was confused by the Plaintiff’s offers. I fail to see why he was confused. The offers were clear and unequivocal as a potential for resolution to the litigation.

[ 15 ] On June 11, 2012, the Plaintiff made a formal offer to settle the motion which included a recognition of a mutual right-of-way to the driveway in question to the parties and that neither party would obstruct in any way whatsoever the right-of-way. It also included a paragraph that the Defendant would pay the partial indemnity costs of the Plaintiff in relation to the motion to June 15, 2012, and thereafter on a substantial indemnity basis, as agreed upon or assessed.

[ 16 ] In paragraph 14 of his written submissions counsel for Defendant recites the difficulties he had with the Plaintiff’s offer of June 11, 2012. The Defendant made no offer to settle in reply. Given the fact that the offer of June 11, 2012 related to the pending motion only, I fail to see how the acceptance of this offer or a reasonable counter offer would have prevented the Defendant from pursuing his claim to nuisance in the main action.

[ 17 ] From the above, I conclude that the Plaintiff, leading up to the hearing of this motion, made numerous reasonable attempts to settle the motion. The Defendant’s position with respect to the erection and maintenance of his barrier across the whole of the driveway and his questioning of the right-of-way, did not change throughout. There is no question that the Defendant’s intransigent position substantially contributed to the necessity of hearing this motion.

[ 18 ] The Plaintiff succeeded on declaratory relief and injunctive relief sought by him. There was no loss of property rights to either party as a result of the motion. The Plaintiff’s earlier offers to settle which included the abandonment of the right-of-way and partitioning the driveway by way of a fence, while it may have definitively ended the litigation between these parties, would have resulted in both of them losing property rights, namely a right-of-way over each other’s part of the driveway. Consequently, the motion decision cannot be said to be as favourable as or less favourable than the terms of the Plaintiff’s early offers, even though the Plaintiff’s reasonable attempts to settle the whole of the litigation between the parties may and should be considered.

[ 19 ] However, that is not the case with the Plaintiff’s offer dated June 11, 2012. In my view the Plaintiff obtained a result on this motion which is “as favourable as or less favourable than the terms of the offer to settle”, in the words of rule 49.10 of the Rules of Civil Procedure . Pursuant to that same rule, the Plaintiff should certainly be “entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.”

[ 20 ] Counsel for the Defendant in his written submissions has raised a number of comments about the quantum of the Plaintiff’s counsel’s costs outline. I am not prepared to second guess the number of hours spent on the case by counsel for the Plaintiff in view of the fact that the sole complex legal issue in this case, as identified by counsel for the Defendant himself, and which would have required some substantial legal research was the question of the existence of a legal right-of-way. This issue was raised by the Defendant and clearly, the need to research it arose from the Defendant’s consistent and intransigent position on the issue. Ultimately, the legal point was conceded by the Defendant but far too late to prevent the Plaintiff having to prepare to argue the legal point in court.

[ 21 ] Furthermore, the Defendant has not submitted a cost outline or a bill of costs showing what costs the Defendant has incurred on this motion. Because of the absence of that significant comparator, it is difficult if not impossible for the Defendant to present a credible argument against the quantum of costs sought by the Plaintiff as not being an amount which the Defendant could not have reasonably expected to pay in the event of the lack of success on the motion or in the words of the Ontario Court of Appeal in the case of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA) , 71 O.R. (3d) 291 (Ont. C.A.) a “fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.” I agree with the words of Hambly J. quoting Winkler J. A. in Hamilton (City) v. Canada (Attorney General) , 2012 ONSC 1363 , at para. 31 :

in the absence of a statement of costs of the party against whom costs were to be assessed setting out the time spent and the hourly rate to be applied, ‘the attack on the quantum of costs, insofar as the allegations of excess are concerned … is no more than an attack in the air.’

[ 22 ] I can take no issue with the disbursements claimed by the Plaintiff.

[ 23 ] For the above reasons I award the Plaintiff his costs of his motion payable by the Defendant forthwith fixed in the total amount of $20,336.52 plus HST. Those costs are fixed in the following way. The Plaintiff is awarded the substantial indemnity costs of Mr. Gibson for the motion heard before me on September 6, 2012, in the amount of $6,601.50. He is further awarded the other costs as listed in the Plaintiff’s costs outline on a partial indemnity basis in the total amount of $8,743.95. The Plaintiff is also awarded the full amount of the appearance of Mr. Gibson at the motion in the amount of $2,700. I exclude the costs of the appearance of the second counsel which in my view was not necessary. Finally, the Plaintiff is also awarded the disbursements claimed by him in the total amount of $2,291.07.

M. Linhares de Sousa J.

Released: December 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE RE: J. CLAUDE LAUZON, Plaintiff AND GAETAN LEMIEUX, Defendant BEFORE: M. Linhares de Sousa J. COUNSEL: Charles M. Gibson and Ian Houle, for the Plaintiff Bruce F. Simpson, for the Defendant ENDORSEMENT with respect to costs M. Linhares de Sousa J.

Released: December 7, 2012