CITATION: McClatchie v. Rideau Lakes (Township), 2015 ONSC 3302
COURT FILE NO.: 08-CV-43375
DATE: 2015/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MCCLATCHIE and VICTORIA MCCLATCHIE
Plaintiffs
– and –
THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES and ALLEN CHURCHILL, by his litigation guardian Alma Churchill
Defendants
Robert J. De Toni, for the Plaintiffs
Thomas Connolly, for the Defendant, Allen Churchill
HEARD: By Written Submissions
AMENDED PRELIMINARY costs decision
The text of the original decision was corrected on October 13, 2015
and the description of the correction is appended
KANE J.
[1] The plaintiffs seek a cost award of $75,000. The plaintiffs submit their costs, including time, disbursements and HST are:
(a) $103,024 constituting full indemnity;
(b) $85,403 on a substantial indemnity scale; and
(c) $67,781 on a partial indemnity scale.
[2] No offers of settlement are submitted by either party.
[3] The defendant opposes any award of costs to the plaintiffs.
[4] The defendant in the alternative seeks a hearing to assess the costs claimed as no details were presented as to time docketed. The defendant requires proof of some of the disbursements claimed.
[5] The defendant Churchill submits there should be no award of costs for reasons which include:
(a) The parties agreed there should be no cost award on the defendant’s appeal of the trial decision;
(b) The plaintiffs were unsuccessful as to several claims they presented at trial;
(c) The defendant was successful on portions of the relief sought in his counterclaim;
(d) The plaintiffs presented and then withdrew claims at trial; and
(e) The costs claimed include the plaintiffs’ costs in their claim against the Township which the plaintiffs in reply admit is the case.
[6] What the parties agreed to on the appeal is not relevant.
SECTION 131 COURTS OF JUSTICE ACT, R.S.O. 1990 C. c. 43
[7] The court has discretion as to whether costs are to be awarded and the extent thereof.
[8] The exercise of this discretion involves consideration and incorporation of the following general principles:
(a) Successful litigants are normally entitled to costs;
(b) Settlement is to be encouraged;
(c) Inappropriate behaviour by litigants is to be discouraged and reflected where appropriate in the award: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3rd) 330; and Fellowes, McNeil v. Kanas General International Insurance Co. (1997), 1997 12208 (ON SC), 37 O.R. (3d) 464.
RULES 1.04 (1.1) AND 57 CONSIDERATIONS
PROPORTIONALITY AS TO IMPORTANCE AND COMPLEXITY OF ISSUES
[9] The defendant sought court intervention to extinguish title claims of the plaintiffs to land adjoining their home. The defendant sought to compel the plaintiffs to remove their garage, septic bed, parking area and effectively cut off access to their property unless the defendant compensation.
[10] The issues were critically important to the plaintiffs and materially affected their property, its value and their use thereof.
[11] The factual and historical record involving this property and the property surrounding it, the separate surveyed portions thereof combined with the number of issues resulted in a complex proceeding and trial.
SUCCESS
[12] The plaintiffs were largely successful. The court determined their ownership of land under their building and structures as well as most of the surrounding property together with their legal right of access to their property.
[13] The defendant was largely unsuccessful in his counterclaim. His limited success at trial related to land of secondary importance.
CONDUCT OF A PARTY TENDING TO SHORTEN OR TO LENGTHEN THE PROCEEDING UNNECESSARILY
[14] The plaintiffs presented alternate legal arguments in support of their claims. Presentation of such alternate claims will not deprive or reduce this cost award.
[15] Withdrawal of alternate grounds claimed at the start or during this trial was appropriate and should not have been pursued further.
[16] Beyond the length of legal submissions, the alternate and withdrawn arguments of the plaintiffs did not lengthen this 5-day trial and were limited to legal research.
[17] The Riddell reference plan and evidence related directly to issues in this proceeding. The costs thereof are appropriately part of the plaintiffs’ claim of costs.
IMPROPER, VEXATIOUS OR UNNECESSARY STEPS TAKEN THROUGH NEGLIGENCE, MISTAKE OR EXCESSIVE CAUTION
[18] This is dealt with above and is not otherwise applicable.
REFUSAL TO ADMIT WHICH SHOULD HAVE BEEN ADMITTED
[19] Not argued.
EXPERIENCE OF THE LAWYER INCLUDING YEAR OF CALL, HOURS EXPENDED AND RATES
[20] These are matters not yet disclosed and will be dealt with on an assessment requested by the defendant.
WRITTEN OFFERS OF SETTLEMENT
[21] No offers are disclosed.
LEVEL OF COSTS TO BE AWARDED
[22] The plaintiffs seek slightly in excess of partial indemnity which is the appropriate scale.
AMOUNT OF COSTS AN UNSUCCESSFUL PARTY SHOULD REASONABLY EXPECT
[23] The quantum of costs claimed given the nature, complexity and duration of trial is generally within what should be the reasonable expectation of this unsuccessful defendant.
CONCLUSION
[24] Based on the above factors, the plaintiffs are entitled to costs on a partial indemnity scale. The quantum thereof will be set on the assessment requested. The amount assessed shall be payable within 30 days.
[25] The plaintiffs will provide the defendant within 10 days with a copy of their time dockets, totals, calculations and documentary proof of the disbursements the defendant requires proof of.
[26] The defendant shall within 10 days thereafter notify the plaintiffs as to:
(a) What time docketed is disputed; and
(b) Which disbursements he disputes.
[27] Time docketed and disbursements which are not disputed pursuant to para. [25] are admitted by the defendant.
[28] The parties shall obtain an appointment for the assessment requested which is not to exceed 2.5 hours.
Kane J.
Released: October 13, 2015
APPENDIX
October 13, 2015:
Any reference to Rideau Lake in the original decision released June 1, 2015, is hereby replaced with Rideau Lakes.
CITATION: McClatchie v. Rideau Lakes (Township), 2015 ONSC 3302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MCCLATCHIE and VICTORIA MCCLATCHIE
Plaintiffs
– and –
THE CORPORATION OF THE TOWNSHIP OF RIDEAU LAKES and ALLEN CHURCHILL, by his litigation guardian Alma Churchill
Defendants
AMENDED preliminary COSTS DECISION
Kane J.
Released: October 13, 2015