Endorsement on Costs
COURT FILE NO.: 10-48766
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Garry Lackner, Linda Lackner, Eric Thomson, Susan Desjardins and Patricia Tite, Applicants/Plaintiffs
– And –
Shane Hall, 2219160 Ontario Limited, Stanley Thomas Wallace, William Robert England, Allan Keys, Catherine Keys, Wayne Morris and Vikki Storie, Respondents/Defendants
BEFORE: Mr. Justice James E. McNamara
COUNSEL:
John Parr Telfer, for the Applicants/Plaintiffs
James L. Shields, Respondents/Defendants
HEARD: April 2, 3, 4, 10, 11, 12 and 13, 2012
ENDORSEMENT ON COSTS
[1] In my decision on costs in this matter released November 14th, 2012 I awarded the Plaintiffs costs of $86,841.00 plus HST and disbursements. An issue has now arisen that requires this further endorsement.
[2] In my trial decision released July 23rd, 2012 I ruled in the Plaintiffs’ favour and provided them with the declaratory relief they sought. The evidence at trial had disclosed that the Plaintiffs are the successors in title to the individuals who purchased lots on plan #418. The Defendant Limited Company was identified by the evidence as purporting to be the owner of a strip of land between the northerly limit of the lots shown on the plan, and the edge of the Ottawa River. It was the position of the Limited Company that that entity had acquired the interest, if any, of the original sub-dividers of the land to this strip.
[3] All of the evidence at trial was geared toward this ownership dispute between the Plaintiffs and the Corporate Defendant. No evidence was adduced as to any of the named individual Defendants, nor were any submissions made. As indicated earlier, after hearing the evidence and receiving and reviewing detailed written argument, I determined that the Plaintiffs were entitled to a declaration that the boundaries of their lots extended to the water’s edge and that the purported present day successors to the original sub-dividers, the Limited Company, had no interest in the strip of land.
[4] Subsequent to my assessment of costs, Plaintiffs’ counsel took the position that the costs should be awarded not only against the Corporate Defendant, but also the named individual Defendants and one unnamed party.
[5] I disagree with that submission.
[6] The declaration I granted the Plaintiffs, in keeping with the evidence tendered and the argument made, related to the competing assertions of the Plaintiffs on one hand and the Corporate Defendant on the other. The Statement of Claim did seek an interim injunction against an individual Defendant, but that remedy was not pursued at trial. Without the benefit of evidence or argument as to the role of the individual Defendants, I was left to speculate as to their role. I assumed they were nominal Defendants, and it would be inappropriate in those circumstances to require them to pay costs. No relief was sought from these individuals during the trial, they weren’t even mentioned in any meaningful way other than when the issue of costs arose. As far as I am aware from the evidence tendered at trial and the argument made, this litigation was not made necessary by any position they took, but rather because of the position being advanced by the Corporate Defendant.
[7] I am also not persuaded there is any basis for a costs order against the non‑party referenced in the materials.
[8] In the result the order of costs is to go against 2219160 Ontario Ltd. and I have signed this day the draft judgment to that effect.
McNamara, J.
Date: April 10th, 2013
COURT FILE NO.: 10-48766
ONTARIO
SUPERIOR COURT OF JUSTICE
RE : Garry Lackner, Linda Lackner, Eric Thomson, Susan Desjardins and Patricia Tite, Applicants/Plaintiffs
– And –
Shane Hall, 2219160 Ontario Limited, Stanley Thomas Wallace, William Robert England, Allan Keys, Catherine Keyrs, Wayne Morris and Vikki Storie, Respondents/Defendants
BEFORE: Mr. Justice James E. McNamara
COUNSEL:
John Parr Telfer, for the Applicants/Plaintiffs
James L. Shields, Respondents/Defendants
HEARD: April 2, 3, 4, 10, 11, 12 and 13, 2012
ENDORSEMENT ON COSTS
McNamara, J.
Released: ** April 10th, 2013**