1402266 Ontario Inc. et al. v. 2322235 Ontario Inc., 2015 ONSC 556

COURT FILE NO.: CV-14-511822

DATE: 20150126

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1402266 ONTARIO LTD. and MIRNIC MANAGEMENT INC., Applicants

AND:

2322235 Ontario Inc., Respondent

BEFORE: F.L. Myers J.

COUNSEL: Andrea M. Habas, for the Applicants

Kenneth Prehogan, for the Respondent

READ: January 26, 2015

COSTS endorsement

[1] This application for a prescriptive easement was dismissed by unreported endorsement date December 19, 2014. The respondent seeks costs on a partial indemnity basis of $76,521.49 being approximately 50% of the actual fees incurred. There were a number of affidavits filed. There were five witnesses cross-examined and one examined by summons. The facts spanned decades. In the court’s endorsement, the court noted that the applicants’ evidence fell well short of the requisite quality to establish a property interest over the land of another.

[2] The applicants assert that the costs claimed are disproportionate to the facts and issues. The costs sought on a partial indemnity basis exceed the total fees billed to the applicants by their counsel. They criticize the respondent’s counsel for having done so thorough a job just to preserve a few feet of their property. Moreover, they note that the respondent is a wholly owned subsidiary of a substantial enterprise that can better afford to litigate or to give up a property interest than the applicants.

[3] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c ). The Court must consider as well as the application of the principle of proportionality (Rule 1.04(1)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario) 2004 14579 (ON CA), (2004), 71 OR (3d) 291 (Ont CA), at paras 26, 37.

[4] I do not think that it lies well in the mouth of the unsuccessful party whose evidence was found to be lacking to complain that the party opposite did a more thorough job marshalling its resources. Moreover, they cannot complain that when they attacked a large company, it went to its usual counsel at a more expensive law firm. There is indeed an important emphasis on proportionality throughout civil litigation in Ontario. I do not agree with the applicants that a landowner should not be reasonably expected to take the fullest of steps to preserve its land intact. Our system of property and much of our system of law is built on notions of ownership of property and the underlying principle that a person’s home is her or his castle. While there are other similar cases in which the costs awards have been less than are claimed here, there are also cases where costs have been awarded at the same level as are sought here. It was well within the applicants’ knowledge or ability to know the range of costs that have been ordered in similar cases. In all, having reviewed the parties’ respective bills of costs, it seems to me to be fair and proportional for the applicants to be jointly and severally liable to pay to the respondent its costs on a partial indemnity basis fixed at $76,521.49.

________________________________ F.L. Myers J.

Date: January 26, 2015