BARRIE

COURT FILE NO.: CV-14-0140

DATE: 20150918

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE TORONTO-DOMINION BANK

Applicant

– and –

SHEILA WISE, JORDANNA LIPSON, EARL LIPSON, 2276552 ONTARIO INC. and 1432975 ONTARIO LIMITED

Respondents

J. Daniel Dooley/Samantha Cain, for the Applicant

Michael Simaan for the Respondents Jordanna Lipson, Earl Lipson and 2276552 Ontario Inc.

HEARD: by written submissions

RULING ON COSTS

DOUGLAS J.

[1] On August 7, 2015 I released my Reasons for Partial Judgment in this application heard July 23, 2015.

[2] The application sought the following relief:

(a) An order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the lands legally described as “PCL 26901 SEC SS; PT LOT 24 CON 8 McKellar PT 3 & 4 42R14981, S/T PT 3 42R14981 AS IN R020477 & LT228666; McKellar” PIN 52128-0262 LT [hereinafter “Part 3”] for the benefit of the lands legally described as “PCL 23654 SEC SS; Pt Lt 24 Con 8, McKellar, PT 2 42R14981; McKellar” [hereinafter “Part 2”] PIN 52128-0263 LT.

(b) Alternatively, an order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the paved driveway/roadway which travels through the lands legally described as “PT LT 23-24 CON 8 MCKELLAR PT 2 42R3855, PT 1, 2, 3, AND 4 42R9935 AND PT 17, 18, 19, 20, 23, AND 36 42R14980 EXCEPT PT 26, 27 AND 28 42R14980; S/T RO19598” balance of description PIN 52128-0633 LT [hereinafter the “Inn and Tennis Resort Lands”] for the benefit of Part 2.

(c) In the further alternative, an order declaring and determining that an easement of necessity or an easement of apparent accommodation exists over and upon the laneway which travels from Part 2 and across the lands legally described as: “PCL 27712 SEC SS; PT LT 24 CON 8 McKellar PT 1 42R14981; S/T EASEMENT IN GROSS OVER PT 1 42R17447 AS IN LT275129” PIN 52128-0261 LT [hereinafter “Part 1”] to the Inn Road for the benefit of Part 2.

(d) An order declaring and determining that the right-of-way for the benefit of Part 2 entitles the owners of Part 2 to a full, unrestricted and unimpeded use and enjoyment of the Right-of-Way over Part 1, The Inn and Tennis Report Lands or Part 3 for ingress to and egress from Part 2 including their tenants, invitees, servants and agents;

(e) Costs of this Application

[3] In the result I found an easement of necessity exists over and upon the land described herein as Part 1, in favour of Part 2, to the Inn Road and I directed a trial to determine the most efficacious and least intrusive location of the easement if the parties were unable to agree.

[4] In argument before me, the vast majority of submissions, and materials, were focussed on the issue of whether an easement of necessity exists. Considerably less time and effort was expended on the particular route although that remained a significant issue.

[5] I therefore conclude that the Applicant enjoyed substantial success on this application even though the route of the easement has yet to be determined.

[6] At the same time, the Respondent 2276552 Ontario Inc. (hereinafter “227”) was entirely successful upon the application in that there was no finding of an easement of necessity in respect of any property owned by 227; indeed, during submissions by Applicant’s counsel it was conceded that no relief was being sought against this Respondent.

[7] The Applicant seeks its costs in the amount of $46,570.16 on a partial indemnity basis or $48,743.15 on a substantial indemnity basis. In this regard, the Applicant refers to the factors listed in rule 57.01(1) of the Rules of Civil Procedure and notes that a cost award should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant. ([See Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), 2004 O.J. No. 2634 (Ont. C.A.)]. Further, it is submitted that costs rules are designed to foster three fundamental purposes:

(1) to partially indemnify successful litigants for the costs of litigation;

(2) to encourage settlement; and

(3) to discourage and sanction inappropriate behaviour by litigants [see Serra v. Serra 2009 ONCA 395, 2009 O.J. No. 1905 (Ont. C.A.)].

[8] The Respondent 227 seeks its costs of this application in the amount of $11,042.19, representing one-half of the total amount of the costs outlined on behalf of the Respondents 227, Jordanna and Earl Lipson. The Respondents Jordanna and Earl Lipson submit that any costs issues as between them and the Applicant be reserved to the trial judge. The Lipsons further submit that the amount sought by the Applicant is unreasonable considering that the Applicant is requesting almost twice the amount of the Respondents’ Costs Outline, particularly when considered in light of the Applicant’s failure to achieve access under any of its proposed routes.

[9] As I have already indicated the issue upon which I found in favour of the Applicant represented the focus of the lion’s share of effort in the proceedings before me. Although the lingering issue of the route of the easement has been reserved for trial, if necessary, I see no compelling reason to postpone the issue of costs in relation to the issue on which I have granted judgment.

[10] In assessing costs in this case I consider that the issues were of great importance to the parties, and in particular to the Applicant who was otherwise dealing with landlocked property, having a significant impact upon its value. I also consider that the easement issue was complex and justified the significant and helpful research presented to me in furtherance of the parties’ submissions on this issue. There was further investigation necessary to put the easement issue in its extensive historical context. I also consider that the Applicant’s costs are necessarily higher than the costs of the Respondents as a consequence, at least in part, of the disbursements associated with conveyancers and Mr. Forth’s report which, by themselves, amounted to approximately $6,000.

[11] The Applicant was represented by senior counsel.

[12] I have been made aware of no offers to settle. With respect to the issue of costs regarding Respondent 227, the Applicant argues that 227 should not be entitled to costs given that this Respondent was not an active participant in the application and thus did not incur significant defence costs. In response, 227 notes the Applicant’s concession at the hearing that an easement over 227’s property was not a legally available option and thus 227’s involvement in the application was unnecessary. 227 further submits that 227 was an active participant in the application. The Applicant’s claim for an easement over either of the lands referred to in the Application as Part 3 or the Inn and Tennis Resort lands forced 227 to incur additional costs researching and responding to this particular claim as it was unique from the claim for an easement over the lands referred to in the application as Part 1. A representative of 227 was cross-examined and as appears from the expert report, the Applicant’s preferred route of access for the easement was over 227’s lands, even though that was not a legally available option.

[13] In these circumstances, and having regard to the principles outlined above, I assess costs in favour of the Applicant as against the Respondents Jordanna and Earl Lipson in the amount of $35,000 including disbursements and HST.

[14] I also award costs to the Respondent 227 against the Applicant fixed in the amount of $8,000 including disbursements and HST.

DOUGLAS J.

Released: September 18, 2015