Lima v. Sarrouh, 2013 ONSC 5105

SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-2418-00
Date: 20130802

RE: Francisco Lima and Gabriela Lima – and – Roger Sarrouh

Before: Justice D.L. Edwards

Counsel:
Fernando Teixeira, for the Plaintiffs

Carlin McGoogan, for the Defendant

COST ENDORSEMENT

1On June 17, 2013 I heard a motion by the defendant for summary judgment dismissing the plaintiffs’ action and granting summary judgment on the counterclaim. I granted the motion dismissing the plaintiffs’ action and granted summary judgment on the counterclaim with the exception of one element.

2The effect of this action was to declare that the boundary line between the defendant’s property at 3318 Carillion Avenue, Mississauga Ontario and the plaintiffs’ property at 3316 Carillion Avenue, Mississauga was in accordance with the survey prepared by Land Survey Group, dated October 7, 2010. In addition, the plaintiffs were required to remove at their expense the fence that they had constructed, and which encroached onto the defendant’s property.

3Following the granting of that order, I requested cost submissions.

4Factors which the Rules require that I consider include:

• the amount claimed and the amount recovered in the proceeding;

• the complexity of the proceeding;

• the importance of the issues;

• the conduct of a party that tends to lengthen or shorten unnecessarily the duration of the procedures;

• the party’s refusal to admit anything that should have been admitted;

• the experience of the party’s lawyer and the hours spent.

5The plaintiffs submit that this is a case that warrants cost on a partial indemnity basis. The defendant submits that this is an appropriate situation in which costs for the motion and the action should be awarded on a substantial indemnity basis.

6The defendant was virtually completely successful, and in the circumstances is entitled to costs. The question is quantum.

7On June 28, 2011, the defendant served an Offer to Settle the action on the basis that it be dismissed with costs on a partial indemnity basis. This offer remains open and was never accepted.

8The plaintiffs submit that I should not take into consideration this offer to settle as the defendant had the mistaken belief that section 51(1) of the Land Titles Act operated as a complete bar to the plaintiffs’ adverse possession claim.

9I do not agree. The offer to settle was not made conditionally. It was a self-standing offer. Whether the defendant held a mistaken belief or not at that point is irrelevant for the purposes of the offer.

10The plaintiffs allege that they have acted reasonably throughout as they had a legitimate claim for adverse possession; the failure of the plaintiffs to accept the offer to settle is not an action of being unreasonable; and the plaintiffs submitted their own offer to settle and proposed mediation.

11Although the plaintiffs may have made settlement attempts, I do question the reasonableness of their conduct in pursuing this matter in the face of all surveying evidence, which surveys they commissioned.

12The defendant served a Request to Admit that the location of the legal boundary was as set out in two surveys obtained by the plaintiffs. The plaintiffs assert that the requested admission constituted the very crux of the case, and that such finding should be made by the court, rather than as an admission by the parties. I agree that such failure to admit will not be held against the plaintiffs on the issue of cost.

13The defendants seek costs in the amount of $43,877.93 on a substantial indemnity basis or $30,026.40 on a partial indemnity scale.

14As noted, the plaintiffs submit that the scale should be on a partial indemnity basis. Further, the plaintiffs assert that the defendant's legal counsel hourly rate at $308.00 is excessive given his year of call. The plaintiffs ask me to compare these legal costs to costs in another matter involving a boundary dispute.

15Based upon the complexity of this matter, I am satisfied that the time spent is appropriate. I am also satisfied that the hourly rate is within an appropriate range. The question which I must determine is whether or not the scale should be on a partial indemnity basis or a substantial indemnity basis, or somewhere in between.

16Considering all the foregoing factors I fix the costs at slightly more than partial indemnity and slightly less than substantial indemnity in the amount of $35,000.00 fixed payable forthwith.