CITATION: Hoggarth v. MGM Farms and Fingers Limited, 2015 ONSC 3649
BARRIE COURT FILE NO.: CV-14-1219
DATE: 20150605
CORRECTED: 20150609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RONALD HOGGARTH, COLIN TAYLOR and JIM SARJEANT
Applicants
– and –
MGM FARMS AND FINGERS LIMITED, LAWRENCE WESTREICH, IRINA MIRZOKANDOV, DAVID STEINBERG and ANTOINETTE STEINBERG and THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
Respondents
E. Marshall Green/Sarah Hahn, for the Applicants
David Cherepacha/Kyle Gossen, for the Respondents MGM Farms and Fingers Limited, Lawrence Westreich, Irina Mirzokandov, David Steinberg and Antoinette Steinberg
Christopher J. Williams for the Respondent The Corporation of the Township of Oro-Medonte
HEARD: by written submissions
Corrected decision: The text of the original Reasons for Decision on Costs was corrected on June 9, 2015 and the description of the correction is appended.
CORRECTED REASONS FOR DECISION ON COSTS
DiTOMASO J.
THE APPLICATION
[1] The nature of the application is set out in my Reasons for Decision released April 17, 2015.
[2] In short, the Applicants asked the court to confirm their rights to decades-old “user in common” rights set out on Plan 993 in the Township of South Orillia and now in the Township of Oro-Medonte. Further, the Applicants sought an order declaring that the Respondent owners of the fee simple of the subject lands were prohibited from taking any action that would interfere with or derogate from the rights of the Applicants or others who were owners of the lots on the Plan, in those lands.
[3] There were two issues for determination described in my reasons:
(a) What is the nature of the rights that were given to the Applicants and other owners of the Slivers by virtue of the dedication noted on Plan 993? and,
(b) What, if any, effect do the provisions of the Land Titles Act with respect to “Land Titles qualified” designation, and the predecessor provisions of the Registry Act on limitations on claims for user have on these rights?
[4] The Applicants were entirely successful on this application. Both issues were determined in favour of the Applicants. The disposition of the application can be found at para. 92 of my Reasons.
[5] As for the issue of costs, it was agreed that costs would be determined by way of written submissions. I have received those written submissions from counsel for all parties in this matter.
POSITIONS OF THE PARTIES
Position of the Applicants
[6] The Applicants seek partial indemnity costs in respect of the preparation and argument on the application. Further, costs are sought on a substantial indemnity basis in respect of the preparation of the Bill of Costs and costs submissions on the grounds that the Applicants and Township agreed that each party would bear their own costs of the proceedings regardless of success. This proposal was declined by the Respondents. It is submitted that costs in respect of the submission on costs and preparation of the Bill should be settled on the basis of substantial indemnity.
[7] The Applicants claim the following costs:
Fees $44,762.50
HST 5,819.13
Taxable Disbursements 735.60
HST on taxable disbursements 95.63
Non-taxable Disbursements $ 181.00
Subtotal $1,012.23
Total Costs Claimed $51,593.86
[8] The Applicants submit that with respect to factors set out at rule 57.01(b)(c)(d) and (e), this matter was of considerable complexity dealing with significant issues of real estate/property law requiring research extending back some 65 years. Not only was a detailed title search required as set out in various affidavit material, further affidavit material was required from other landowners as to the current and continued use of the lands in question. This involved the gathering together of extensive historic and photographic evidence that made up a fulsome court record.
[9] In addition, the insertion of the provisions of the Land Titles conversion qualified process into the application added a further level of complexity. The term “dedication”, being one that was not specifically referred to in either the Registry or Land Titles Acts required extensive legal research to find the necessary legal analogies to bring to the court.
[10] The issues were very important to the Applicants as well as the Respondents and the municipality. An important public interest issue for the Applicants and the Township and an important legal issue for real estate practitioners (the interpretation of “dedications” made on subdivision plans) were addressed at the instance of private individuals.
[11] Accordingly, the Applicants’ claim for costs is significant.
Position of the Respondents MGM Farms and Fingers Limited, Lawrence Westreich, Irina Mirzokandov, David Steinberg and Antoinette Steinberg
[12] These Respondents submit that they should pay costs in the amount of $10,000 to the Applicants, inclusive of HST. They submit there is no basis for an award of substantial indemnity costs. Further, the factors for rule 57.01 of the Rules of Civil Procedure include the amount of costs that an unsuccessful party could reasonably be expected to pay. The Applicants’ claim for $51,593.86 for costs, the vast majority of which costs are on a partial indemnity basis. This was a one day application. In essence, the rates charged and the time spent are excessive.
[13] As for the conduct of any party that tended to shorten the duration of the trial, these Respondents delivered only one brief affidavit and declined to conduct cross-examinations of the Applicants, significantly reducing the Applicants’ costs. No motions were required. Submissions were completed in less than one day. All parties worked expeditiously to insure the application was heard in a timely manner.
[14] The issues were as important to the Respondents as they were to the other parties.
[15] Costs were also claimed against these Respondents by the Respondent, The Corporation of the Township of Oro-Medonte (the “Township”).
[16] It is submitted that these Respondents did not seek any relief as against the Township, nor did the Township seek any relief against these Respondents. The Township was named as Respondent and brought into this application by the Applicants. Nearly the entirety of the Township’s Factum addresses the relief sought against the Township by the Applicants.
[17] In their Reply Factum, the Applicants accepted the Township’s position and abandoned the relief sought against the Township. Accordingly, it is submitted by these Respondents that there was no reason for the Township to be involved in the application hearing. Until the application hearing, the Respondents understood that the only reason for the Township’s involvement related to the relief sought against it. It was not until the outset of the hearing that the Applicants abandoned their relief as against the Township.
Position of the Township of Oro-Medonte
[18] The Township is not seeking costs against the Applicants and understands the Applicants are not seeking costs against the Township.
[19] However, the Township seeks costs against the Respondents on a partial indemnity basis and costs against the Respondents in relation to the preparation of the Bill of Costs and costs submissions on a substantial indemnity basis. The grand total of costs sought is the sum of $15,276.63.
[20] The Township submits that it has been aligned with the Applicants throughout. To this effect, the Township submits that it was completely successful on all aspects of the Application and is therefore entitled to costs pursuant to rule 57.01(1)(b) of the Rules of Civil Procedure.
[21] The application was of importance to the Township and also of significant public importance as the application involved the issue of proper drainage of the subject lots and surrounding properties. A decision in this application would have significant impact on the Township’s ability to effectively deal with drainage issues of these and surrounding lands. It is submitted that the Township’s concern was only engaged by the application and the Respondent landowners’ position therein.
[22] The Township adduced affidavit evidence unchallenged by the Respondent landowners. This affidavit evidence was found to be useful and persuasive. It was accepted and relied upon by the court. Submissions by the Township during the hearing were also found to be helpful to the court. It is submitted that the time spent in preparing for the court appearance was justified.
ANALYSIS
Costs Claimed by the Applicants
[23] The Applicants are entitled to costs throughout on a partial indemnity scale. I do not agree that they are entitled to the costs on a substantial indemnity scale for the preparation and submissions on costs. The conduct of the parties do not support a claim for costs on a substantial indemnity scale.
[24] As for quantum, I recognize the complexity involved in this matter, together with the importance of the issues to the parties. I have considered the factors set out in rule 57.01(a)(b)(c)(d) and (e) as submitted by the Applicants. I have also considered the necessity of obtaining affidavit evidence from various landowners in order to deal with the historic context relating to the dedication set out on Plan 993.
[25] An additional layer of complexity was added in respect of a review and interpretation of the relevant provisions of the Registry Act and Land Titles Act relating to the “dedication” issue. I have reviewed the Bill of Costs and have considered same in respect of the considerable work that was undertaken regarding this application. Mr. Green docketed 70.1 hours and Ms. Hahn docketed 35.7 hours for a total of 105.8 hours of lawyers’ time. I have no doubt that they spent this time as evidenced and described by detailed docket entries.
[26] I note the seniority of Mr. Green and his designation as a specialist in civil litigation. I also note that Ms. Hahn is a recent call-to-the-bar. Mr. Green’s rate is between $425 - $450 per hour. Ms. Hahn’s rate is between $225 - $250 per hour.
[27] The Applicants claim costs in the amount of $51,593.86. This application was heard in one day.
[28] While I am of the view that the Respondents as unsuccessful parties could reasonably expect to pay significant legal costs in respect of this matter, the sum of $51,593.86, in my view, is an unreasonable sum for an unsuccessful party to pay the Applicants for a one day application hearing, notwithstanding all of the relevant and applicable rule 57.01 factors which I have noted and considered.
[29] In determining the appropriate quantum of the applicants’ costs, I am guided by what is fair, reasonable and proportional. In Davies v. Clarington (Municipality) 2009 ONCA 722, the Ontario Court of Appeal summarized the appropriate principles to be considered in determining whether a costs award is fair, reasonable and proportional.
[30] I have considered the relevant factors set out in rule 57.01 of the Rules of Civil Procedure. I also exercise my discretion pursuant to the Courts of Justice Act. I find that the costs claimed by the Applicants are excessive in all the circumstances and ought to be discounted. I fix the costs of the Applicants in the amount of $45,000 all-inclusive payable by the Respondents to the Applicants within 30 days.
Costs Claimed by the Township of Oro-Medonte
[31] The Township claims costs in the amount of $14,311.45 against the Respondent landowners. The Township was named as a Respondent in these proceedings by the Applicants and not the Respondent landowners. It was an issue as between the Applicants and the Township that was live until morning of the hearing when the court was advised that the Township undertook to provide appropriate notice to all property owners should an application be made to the Township in respect of the subject lands. Such a concession resolved the issue as between the Applicant and the Township.
[32] However, the Township was affected by this application. The rights and interests of the parties in the lands in question was of significant public importance in both facilitating planning decisions relating to these lands in future and insuring proper drainage of the subject lots and surrounding properties.
[33] The affidavit of evidence adduced by the Township, unchallenged by the Respondent landowners, was useful and persuasive. It was accepted and relied upon by the court. The submissions of the Township during the hearing were helpful to the court.
[34] However, the Township is not entitled to substantial indemnity costs as against the Respondent landowners. Notwithstanding submissions that the Township and the Applicants were aligned throughout, it was not until the morning of the hearing that the apparent conflict on the record between these two parties was resolved. Up until that point in time, the Applicants were still seeking relief from the Township and the Township had spent considerable time and expense responding to the claims of the Applicants against the Township.
[35] I find the Township is entitled to partial indemnity costs against the Respondent landowners to the extent of time spent making submissions at the hearing and to a very limited expense time spent in respect of making costs submissions.
[36] I have considered the rule 57.01 factors, and the overarching principles relating to fairness, reasonableness and proportionality. Therefore I exercise my discretion in fixing the Township’s costs in the amount of $2,500 payable by the Respondent landowners within the next 30 days.
DISPOSITION
[37] Accordingly, for these reasons, costs are fixed as follows:
(a) The Respondent landowners shall pay to the Applicants the sum of $45,000 all-inclusive within the next 30 days; and,
(b) The Respondent landowners shall pay to The Corporation of the Township of Oro-Medonte the sum of $2,500 all-inclusive within the next 30 days.
DiTOMASO J.
Released: June 9, 2015
CORRECTION
- Page 5, para. 30, line 4 now reads: … in the amount of $45,000 all-inclusive.