Hofman v. Edmunds, 2015 ONSC 2892

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CAROLEE STACEY HOFMAN and DONALD DEMERS

M. Peter Sammon, for the Applicants

Applicants

• and -

GLORIA MAE EDMUNDS, HOWARD MOORE and LAUREEN MARGARET MOORE

Respondents

HEARD: April 23, 2015

REASONS FOR JUDGMENT

James J.

1The applicants are seeking a permanent injunction restraining their neighbour, the respondent Gloria Mae Edmunds, from interfering with the right of way that is the subject matter of this proceeding.

2This application has a long history, having been commenced about 3 ½ years ago. The applicants are a father and daughter who own two cottage properties on that part of the Ottawa River known as Lower Allumette Lake in the former Township of Westmeath, now Township of Whitewater Region.

3The respondent Ms. Edmunds lives adjacent to these properties, immediately to the west of the Hofman property.

4All three properties front on the Ottawa River. Behind the properties, lying to the south, is a 33-foot right of way running from east to west that eventually connects with County Road 12. The right of way transitions to a 16-foot right of way at a point lying east of all three properties where the right of way turns south to connect with the public road. The right of way facilitates access to several properties in the vicinity. The underlying ownership of the land comprising the right of way is in favour of the respondents, Howard Moore and Laureen Margaret Moore.

5The lots fronting on the water in this area are small, approximately 40 feet by 60 feet and consequently the buildings tend to be quite close together.

6At the back of the applicants’ cottages (the south side) adjacent to the right of way, the properties were enclosed by a large cedar hedge that projected about half way out into the right of way. The presence of the hedge appears to pre-date Ms. Edmunds arrival in the neighbourhood in the early 1980s.The travelled portion of the right of way lies to the south of the edge of the former hedge line.

7The evidence adduced by or on behalf of the applicants established that the hedge had been in place for over 50 years and as such the applicants acquired prescriptive rights to that portion of the right of way lying within the area enclosed by the hedge now shown as Parts 1 and 2 on Plan 49R18043 dated March 6, 2013.

8The evidence discloses that the respondent Ms. Edmunds formed the belief that the cedar hedge unlawfully projected into the right of way land and took it upon herself, in concert with others, to unilaterally remove the hedge.

9Unfortunately for Ms. Edmunds, subsequent developments established that the hedge was lawfully in place by reason of the passage of time extinguishing the Moores’ legal title to the enclosed portion of the right of way with concomitant loss of access by the property owners who had the benefit of the right of way, all of this by operation of the Real Property Limitations Act, RSO 1990, c.L. 15.

10Subsequent to the commencement of this application, minutes of settlement were agreed to by the applicants and the respondents Howard Moore and Laureen Margaret Moore whereby the Moores conveyed the affected portion of the right of way to the applicants pursuant to the terms of the minutes of settlement. The affected lands are described as Parts 1 and 2 on Plan 49R18043. Part 3 of the said Plan remained unaffected by the minutes of settlement and continued to maintain the status of a right of way for access purposes. Practically speaking, the original 33 foot right of way has been reduced in width by half or a little more but remains passable as a means of ingress and egress.

11As a result of the respondent Edmunds’ unilateral actions in moving the hedge, the applicants commenced this proceeding.

12Ms. Edmunds’ response throughout has been stubbornly defiant. Even after the Moores obtained legal advice and agreed to transfer Parts 1 and 2 to the applicants, Ms. Edmunds maintained that she was completely within her rights to remove the hedge and that the applicants had no right to block any portion of the right of way.

13Early on in the proceeding Ms. Edmunds was advised by the court to seek legal advice but she continued to represent herself throughout the proceeding. On more than one occasion she indicated that she had sought to retain legal counsel but no one within 100 miles would agree to take her case. It is difficult to accept this submission and it is more likely that the real problem is that she was not able to find a lawyer who was willing to advance the case on the basis on her instructions. At a recent court appearance Ms. Edmunds said that her participation in the removal of the hedge was justified pursuant to the provisions of the Damage to Property Act, there being in fact no such legislation in existence.

14In March 2010 the applicants served a notice of examination on Ms. Edmunds. Although she attended and answered some of the questions asked of her, the cross-examination deteriorated to the point where counsel for the applicants was unable to secure proper answers to his questions. As a result, Ms. Edmunds’ responding material was struck out and the applicants were awarded legal costs of $1000.

15Unfortunately, the state of affairs continued to deteriorate with the result that in November 2012 Ms. Edmunds was convicted of mischief following an act of vandalism to property owned by the applicants and placed on probation for one year.

16In addition, Ms. Edmunds harassed the applicants by installing abusive and profane signage directed at the applicants at the edge of her property line that can readily be viewed by passersby.

17Recently the applicants renewed the application for the purpose of securing a permanent injunction against Ms. Edmunds and their legal costs of this proceeding now that the Moores have agreed to convey the disputed right of way to the applicants pursuant to the minutes of settlement.

18At a court appearance on March 20, 2015 Ms. Edmunds continued to dispute the applicants’ entitlement to assert their rights notwithstanding the fact that the registered owners of the land have agreed to convey the disputed portion of the right of way to the applicants.

19Ms. Edmunds indicated an interest in participating in the hearing that was to be scheduled to hear the request for an injunction on April 23, 2015. There were two requirements imposed by the court as conditions to Ms. Edmunds’ continued participation. Her affidavits in response to the notice of application had been struck out in 2010 so her status to participate in the proceeding was compromised. The first requirement was the payment of the outstanding costs order. The second was that Ms. Edmunds was to provide to counsel for the applicants an outline of her position and the evidence she intended to present at least ten days before the hearing date. Ms. Edmunds delivered a document on April 10th, 2015 but it was not responsive to the requirement that she provide an outline of her position and the evidence she intended to present. Notwithstanding this default, Ms. Edmunds was present on April 23. She was provided with a copy of the applicants’ bill of costs and was permitted to make submissions in response to the relief sought by the applicants.

20The history of this proceeding, which includes Ms. Edmunds’ persistent refusal to recognize any entitlement on the part of the applicant to the relief sought and the various harassing activities that have been disclosed including the hedge removal, the mischief charge and the abusive signage adjacent to the applicants’ properties, satisfies me that it is appropriate that a permanent injunction issue against the respondent Gloria Mae Edmunds from interfering in any way with the applicants’ use and enjoyment of the lands described as Parts 1 and 2 on Plan 49R18043.

21In addition, the respondent Gloria Mae Edmunds is permanently restrained from harassing or annoying the applicants.

22On the issue of legal costs, the bill of costs presented by the applicants claims costs on a substantial indemnity basis of $19,766.65 and on a partial indemnity basis of $12,657.76. The rate charged by counsel for the applicants varies between $230 and $250 per hour.

23A substantial component of these costs, approximately $5,000, relates to the applicants’ dealings with the Moores and their counsel, Mr. Crosby. In the minutes of settlement with the Moores, the applicants agreed not to claim any costs against them. In these circumstances, it does not seem appropriate that the legal costs associated with negotiating and settling with the Moores should be borne by the respondent Edmunds.

24With respect to the applicants’ claim for substantial indemnity costs, the usual scale of recovery between parties to litigation is partial indemnity costs. Substantial indemnity costs are generally allowed for only two reasons. Firstly, when a party has made an offer to settle and received a more favourable result at trial. Here there was no offer to settle. The second basis upon which substantial indemnity costs may be recovered is where a litigant engages in inappropriate behaviour that deserves sanction by the court or unnecessarily increases the legal costs that would ordinarily be incurred.

25Here the respondent Ms. Edmunds has engaged in a self-help remedy by removing the hedge and thereby disfiguring the applicants’ property when she had no legal basis to do so. She has persistently refused to recognize any legal entitlement on the part of the applicants and thereby increased their costs. She has been found guilty of criminal activity in relation to the applicants. She has intentionally harassed and annoyed them with inappropriate signage placed at the edge of their property.

26For these reasons, the applicants are entitled to recover their costs on a substantial indemnity basis payable by the respondent Gloria Mae Edmunds fixed in the amount of $13,766.65 inclusive of disbursements and HST. This figure represents a reduction of $5,000 on account of legal costs incurred in relation to the Moores and $1,000 relating to payment already made by Ms. Edmunds, for a total of a $6,000 reduction in the substantial indemnity amount claimed of $19,766.65.

27The requirement of approval as to form and content of the Order issuing from this endorsement is dispensed with.