Bruce Eco Landbank v. Bruce Eco Industrial, 2015 ONSC 1930

CITATION: Bruce Eco Landbank v. Bruce Eco Industrial, 2015 ONSC 1930

COURT FILE NO.: 12-36711

DATE: 2015-03-25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bruce Eco Landbank Inc. and Crooks Hollow Farm Corporation, Applicants

AND:

Bruce Eco Industrial Park Corporation and the Terra Corporation, Respondents

BEFORE: The Honourable Mr. Justice G.E. Taylor

COUNSEL: William P. Dermody and Angela Papila, Counsel, for the Applicants

Wade W. Sarasin Counsel, for the Respondents

HEARD: February 9 and 10, 2015

cost ENDORSEMENT

[1] The applicants were successful at trial in having removed from title to certain real property, a notice filed under section 71 of the Land Titles Act. The parties have made written submissions with respect costs of the application. The application was converted into the trial of an issue by order of Crane J. dated October 25, 2012.

[2] The applicants were successful and accordingly are entitled to costs of the application. The respondents do not dispute entitlement. The applicants claim that the respondents acted unreasonably by registering the notice on title and then steadfastly refusing to remove it, notwithstanding the numerous requests to do so by the applicants. I do not find that the respondents acted unreasonably so as to be deserving of an award of substantial indemnity costs. The respondents took a position which was ultimately found to be incorrect. Accordingly, the applicants are entitled to an award of costs on a partial indemnity basis.

[3] The applicants seek partial indemnity costs totaling $71,283, which is calculated on the basis of fees of $67,815, including HST and disbursements of $3,468, inclusive of taxes. The respondents submit that the applicants should be awarded costs of $35,000 (inclusive of fees and disbursements), plus HST.

[4] Counsel for the applicants spent a total of 354 hours on this matter. Counsel for the respondents submitted his own Costs Outline. From the respondents’ Costs Outline I calculate the total hours spent on this file by counsel for the respondents to be approximately 190 hours. The hourly rate charged by senior counsel for the applicants was greater than the hourly rate charged by the lawyer in charge of the file for the respondents, but senior counsel for the applicants was called to the bar almost 20 years before the counsel for the respondents. The respondents point out that the applicants were represented by senior and junior counsel whereas the respondents were represented by a single counsel.

[5] The subject matter of this application was a parcel of land which is potentially very valuable. The matter to be decided was important to both sides. There is a dearth of jurisprudence with respect to the filing of a notice pursuant to section 71 of the Land Titles Act. As I have indicated previously, I do not find that the respondents acted unreasonably, although it is obvious that proceedings would have been shorter had they agreed with the applicants’ position. But that is why the respondents will be ordered to pay partial indemnity costs to the applicants. By the respondents submitting their own Costs Outline, I am provided with an indication as to what they would reasonably have expected to pay in costs upon being unsuccessful. It is appropriate that I recognize the greater experience of senior counsel for the applicants and the greater hourly rate that he charged.

[6] I am not assessing costs. In my view, a fair and reasonable amount at which to fix the applicants’ partial indemnity costs of this application is $50,000, inclusive of disbursements and HST. Accordingly, the respondents are ordered to pay to the applicants the costs of this application, fixed in the amount of $50,000 forthwith.

“G.E. Taylor J.”

G.E. Taylor J.

Date: March 25, 2015