CITATION: Wilson v. Johnston, 2016 ONSC 2049

COURT FILE NO.: 163/11

DATE: March 23, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Arthur Wilson

Plaintiff

(Defendant to the Counterclaim)

– and –

Robert Bruce Johnston and Sherryn Virginia Johnston

Defendants

(Plaintiffs by Counterclaim)

Clint H. Culic, for the Plaintiff (Defendant to the Counterclaim)

Jonathan M. Richardson, for the Defendants (Plaintiffs by the Counterclaim)

RULING ON COSTS

ABRAMS, J

Overview

[1] To recall, the Plaintiff sought a declaration that he is the registered owner of a vacant parcel of land approximately 40 feet in width and 60 feet in length which abuts the Defendants` property to the southwest. Throughout the litigation the parcel was referred to as the “cattle path” or the “disputed parcel” (hereinafter referred to as the “disputed parcel”).

[2] Thus, the litigation relates to the ownership of the disputed parcel, and whether the disputed parcel was conveyed to the Defendants’ predecessor in title by the Plaintiff’s predecessor in title, or if ownership of the disputed parcel was retained by the Plaintiff’s predecessor in title.

[3] Following more than three years of litigation and on the eve of a two week trial, the parties attended a pre-trial conference before Scott J to see whether the matter could be settled.

[4] The matter was settled before Scott J. resulting in the parties executing Minutes of Settlement, which were subsequently filed in anticipation of a Final Order being taken out. Scott J’s endorsement reads thus: “Final order to go pursuant to the Minutes of Settlement filed today. M of S to be implemented within 90 days. Aside from the disbursements set out in the M of S, no order as to costs.”

[5] Accordingly, the matter was settled on a without cost basis, had the Defendants not resiled from the settlement agreement (the Minutes of Settlement).

[6] In my view, the Defendants did not resile from the settlement agreement as a result of any duress allegedly suffered by Mrs. Johnston, or alternatively for any of the other claims advanced by the Defendants. Rather, I found as a fact that the Defendants suffered “buyer’s remorse” weeks after the settlement was reached when they attended at the Township Office to inquire regarding the construction of a two-car garage on their property. It was only then that they learned that they needed more land to build the garage. Thereafter, the Defendants engaged in an ex post facto stratagem to overturn the settlement agreement, which resulted in the Plaintiff bringing his motion under Rule 49.09 of the Rules of Civil Procedure (“the Rules”) for judgment in accordance with the agreement.

Law

[7] Rule 57.01(1) of the Rules sets out the factors to be considered, specifically:

The Amount Claimed and the Amount Recovered in the Proceeding.

[8] There is no quarrel that although the dispute centred on a relatively small strip of land, the disputed parcel is of significant importance to all parties.

The Complexity of the Proceedings

[9] While the motion itself was restricted to a discrete set of facts, the evidence, including the analysis of survey documents and cross-examination transcripts (which required a full day in advance) was certainly not routine.

The Importance of the Issues

[10] The issue was of paramount importance as it determined whether the matter was settled, or would proceed on to a two week trial.

The Conduct of any Party That Tended to Shorten or to Lengthen Unnecessarily the Duration of the Proceeding.

[11] Put simply, this matter was settled on August 15, 2014, before Scott J., save for taking out the final order and thereafter enacting the terms of the settlement agreement. The Defendants were entirely responsible for delaying the inevitable, which resulted in additional, significant costs to the Plaintiff.

Whether Any Step in the Proceeding was Improper, Vexatious or Unnecessary or Taken Through Negligence, Mistake or Excessive Caution.

[12] The motion was unnecessary. Had the Defendants not, for entirely self-serving reasons, resiled from the settlement agreement, the Plaintiff would not have been put to the time and expense of bringing the motion.

A Party’s Denial of or Refusal to Admit Anything That Should Have Been Admitted.

[13] Once the parties and counsel focused on the motion, matters were narrowed sufficiently to allow for an efficient process.

The Experience of the Party’s Lawyer

[14] The Plaintiff’s principle lawyer on the motion, Mr. Culic, has 36 years of experience. However, the Plaintiff was put to the unnecessary, added expense of retaining Mr. Culic because of the unmerited claims made by the Defendants, specifically Mrs. Johnston, against Mr. Kelford, the Plaintiffs counsel at the time of the settlement. Mr. Culic was assisted by Ms. DuBois, from Mr. Kelfords office, to allow for continuity in the overlap of representation.

The Hours Spent, the Rates Sought for Costs and the Rate Actually Charged by the Party`s Lawyer

[15] Both parties filed Costs outlines. I find nothing unreasonable about the rates claimed or the time spent on the file by either party. That said, the Plaintiff is seeking substantial indemnity in the amount of $21,260.74, inclusive of disbursements and HST. The Defendants cost outline details costs of approximately $8000.00 more. Moreover, while counsel for the Plaintiff expended 48.5 hours in preparation, counsel for the Defendants shows 127.2 hours. Thus, it is not open for the Defendants to criticize the hours spent or the rates claimed by the Plaintiffs counsel.

Principle of Indemnity

[16] The Plaintiff was entirely successful on a motion that should have been unnecessary, but for the Defendants reneging on the settlement agreement. Rule 57.01(1)(0.a) and (0.b) provide additional factors for the Court to consider in exercising its discretion to award cost under section 131 of the Courts of Justice Act.

Conclusion

[17] In my view, the principle of indemnity, when considered in concert with the other factors, militates in favour of the Plaintiff being made whole on this motion. Firstly, the Plaintiff ought never to have been put to the time and expense of having to bring the motion to enforce the settlement agreement. Secondly, the Defendants were entirely responsible for delaying the inevitable, which resulted in additional, significant costs to the Plaintiff. Thirdly, the Plaintiff was entirely successful. Fourthly, the substantial indemnity costs sought by the Plaintiff are less than the sum that the Defendants reasonably expected to pay in relation to the step in the proceeding for which costs are being fixed.

Order

[18] Costs are fixed in the amount of $21,260.74, payable by the Defendants to the Plaintiff forthwith, and in any event in no less than 14 days from the date of this Order.

The Honourable Mr. Justice B. W. Abrams

Released: March 23, 2016