ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-495392
DATE: 20150710
BETWEEN:
923424 ONTARIO LIMITED
Applicant
– and –
1695850 ONTARIO INC.
Respondent
Wade Morris for the Applicant
Courtney Kazembe and Jayanta K. Singha for the Respondent
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The Applicant, 923424 Ontario Limited, owns three properties in Toronto, Ontario, registered under the Land Titles Act, R.S.O. 1990, c. L.5. The Respondent, 1695850 Ontario Inc., owns a nearby property registered under the Land Titles Act. The Applicant applied for a declaration that as owner of 40 South Station Street, it had a right-of-way over the Respondent’s property at 1919 Weston Road and for related relief.
[2] I granted the Application and ordered the Land Titles Register to be rectified but without prejudice to an action for determination of whether the right-of-way had been abandoned or otherwise extinguished. See 923424 Ontario Limited v. 1695850 Ontario Inc., 2015 ONSC 3343.
[3] I directed that if the parties could not agree about the matter of costs, they could make submissions in writing. I received written submissions from the Applicant and the Respondent.
[4] The Applicant seeks a costs award of $23,972.41, all inclusive. Of this sum, $2,617.25 is for disbursements and $2,737.06 is for HST.
[5] The Respondent submits that that there should be no order as to costs because it was through an administrative error that the right-of-way was not registered against its property under the Land Titles Act and because before the Application, the Applicant never put the Respondent on notice that it was relying on the right-of-way that had been registered in 1962 when the property was registered under the Registry Act (now the Registry Act, R.S.O. 1990, c. R.20).
[6] In an argument that was not made on the Application, the Respondent argues that the right-of-way had expired pursuant to the provisions of the Registry Act and, therefore, the administrative error (which I rectified in my Reasons for Decision on the Application) was not in fact an error and, therefore, the Respondent should not be responsible for costs.
[7] My decision rectifying the title registered under the Land Titles Act was made without prejudice to the possibility of abandonment or other extinguishment of the right-of-way, and the merits of the Respondent’s new arguments, of which I make no comment, must wait for another day, but, in any event, the new arguments do not provide a reason for denying the successful Applicant its costs of the Application.
[8] The Applicant brought an Application for an order rectifying the Land Titles Act Register for 1919 Weston Road to show a right-of-way granted in 1962 when the lands were registered under the Registry Act. The Respondent vigorously resisted the Application, and had it been successful it undoubtedly would have expected to recover costs. It was, however, the Applicant that was successful and I see no reason to deny it costs.
[9] Having reviewed the Applicant’s Bill of Costs and Costs Submissions, in my opinion, the request for costs is fair and reasonable and ought to be granted.
[10] Order accordingly.
Perell, J.
Released: July 10, 2015
COURT FILE NO.: CV-13-495392
DATE: 20150710
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
923424 ONTARIO LIMITED
Applicant
– and –
1695850 ONTARIO INC.
Respondent
REASONS FOR DECISION – COSTS
PERELL J.
Released: July 10, 2015