KINGSTON COURT FILE NO.: CV-11-001-00

DATE: 2014 Aug 19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PRISCILLA JUNE LOVE
Plaintiff

– and –

THE ESTATE OF LEE RICHARD SCHUMACHER
Defendant

Kurt R. Pearson, for the Plaintiff

David M. Adams and Paul M. Fay, for the Defendant

HEARD: August 15, 2014 at Kingston

TAUSENDFREUND, J.

COSTS ENDORSEMENT

[1] My Reasons for Judgment were released July 9, 2014. Both sides claimed title to the cottage. The Plaintiff claimed title on the basis of proprietary estoppel and/or unjust enrichment. The Defendant Estate sought clear title to allow it to enjoy the unfettered ownership options a registered owner can expect.

[2] The judgment granted the Plaintiff a 15 year licence. Success was to a degree divided.

[3] Both sides submitted draft Bills of Costs. There is little to choose between them as to quantum. Although each side had made settlement offers, none of these offers brought R.49 into play. Yet I will consider these offers as they may apply to s. 131(1) of the Courts of Justice Act and the principles and factors set out in R.57 of the Rules of Civil Procedure.

[4] I am mindful that neither side is wealthy. I also have regard to the proportionality principle enunciated in Boucher v. Public Acccountants Council 2004 14579. The objective should be to fix an amount that is fair and reasonable.

[5] The Defendant urges that I should award costs to the Estate fixed at the “modest” sum of $25,000. In the alternative, the Defendant submits that I should consider awarding costs to neither side. I do not accept either position.

[6] In my view, the Plaintiff was more successful than was the Defendant. That fact should be reflected in the award of costs.

[7] The Plaintiff’s Bill of Costs is $82,000 and the Defendant’s $94,000, both based on partial indemnity including disbursements and H.S.T.

[8] The Plaintiff is entitled to her costs which I discount for reasons noted. The Defendant shall pay the Plaintiff’s costs fixed at $50,000.00 all in.

Honourable Mr. Justice W.U. Tausendfreund

Released: August 19, 2014

KINGSTON COURT FILE NO.: CV-11-001-00

DATE: 2014 Aug 19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PRISCILLA JUNE LOVE

Plaintiff

– and –

THE ESTATE OF LEE RICHARD SCHUMACHER

Defendant

costs endorsement

Tausendfreund, J.

Released: ** August 19, 2014**