Court File and Parties

COURT FILE NO.: CV-12-047SR DATE: 20160715

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Craig Frohlich, Plaintiff John Ferraro and Diane Ferraro, Defendants

BEFORE: The Honourable Justice C.J. Conlan

COUNSEL: John D. Middlebro’, for the Plaintiff James A. Ironside, for the Defendants

ENDORSEMENT ON COSTS

Conlan J.

I. Introduction

[1] After a relatively short trial, 2.5 days and closing submissions delivered in writing, in Reasons for Judgment reported at 2016 ONSC 3324, I decided this case in favour of the Plaintiff ("Frohlich").

[2] The subject matter of the trial was a dispute between cottage neighbours.

[3] Frohlich's claim, as amended, was granted insofar as it related to declaratory relief, an injunction and nominal damages for the Defendants ("Ferraros") having trespassed on his property. The Ferraros' counterclaim for a prescriptive easement over part of Frohlich's property was dismissed.

[4] Paragraphs 87 and 88 of the Reasons for Judgment made it clear that Frohlich, as the more successful party at trial, would be presumed to be entitled to some costs.

[5] I invited the parties to settle the issue of costs. They have been unable to do so, thus, written submissions were filed.

II. The Positions of the Parties

[6] Frohlich submits that he did as good or better after trial than his offer to settle the case dated June 15, 2012 (the "offer").

[7] Thus, per Rule 49.10 of the Rules of Civil Procedure, he seeks partial indemnity costs of about $1800.00 up to the date of the offer and substantial indemnity afterwards, approximately $49,000.00. Including just over $7000.00 in disbursements, the total amount of costs sought by Frohlich is $57,581.97.

[8] The Ferraros argue that Frohlich did not match or exceed the offer, thus, he should receive partial indemnity costs throughout. That figure ought to be fixed at $25,000.00 but then cut in half to account for the following: (i) Frohlich amended his claim mid-trial; (ii) Frohlich was not entirely successful at trial; (iii) the number of hours spent on the file by Frohlich's counsel is excessive; (iv) the photocopying charges claimed by Frohlich are too high; and (v) Frohlich's delay in setting the action down for trial caused unnecessary stress for the Defendants.

III. Analysis

[9] There is no debate about whether Frohlich is entitled to some costs. The only issues are scale and quantum.

[10] Quantum of costs is largely discretionary. I shall consider the factors outlined in the Rules and the overriding principle that any award ought to be just, fair and reasonable having regard to all of the circumstances, including the expectations of the losing side.

[11] Contrary to the position advanced by the Ferraros, I see nothing excessive about the number of hours spent on the file by Frohlich's counsel. That number is 170 plus for Mr. Middlebro' himself. Given the legal issues involved and the huge stakes at risk for the Plaintiff, I do not criticize Mr. Middlebro' for spending a lot of time to advance his client's case.

[12] Nor do I see anything unreasonable about the cost of photocopying claimed by Frohlich - about $2100.00. Given the number of exhibits involved in the case, although not cheap, that figure I am not prepared to go behind.

[13] The point about Frohlich's delay in passing the Trial Record is valid, but that delay is no reason to discount the Plaintiff's costs. It does not rise to a level that is worthy of sanction in the form of reduced costs, and further, it is not directly related to any legal costs incurred by either side.

[14] On the most significant consideration of whether Frohlich met or exceeded his offer, however, I concur with Mr. Ironside, counsel for the Ferraros.

[15] The offer contemplated the Defendants signing a release of any claim of right over any part of Frohlich's property (including that covered by water). The Ferraros would have also been required to sign an undertaking not to trespass on any part of Frohlich's property (including that covered by water).

[16] The Judgment, on the other hand, granted to Frohlich the declaratory and injunctive relief that he sought once his claim had been amended mid-trial. That relief was limited to property not covered by water.

[17] The Judgment, therefore, is narrower than the offer. The offer, if accepted, would have been better for Frohlich than the Judgment.‎

[18] Thus, I agree with Mr. Ironside that partial indemnity is the appropriate scale. Frohlich did not do equal to or better after trial than his offer.

[19] On a partial indemnity scale, Frohlich's Bill of Costs amounts to $34,000.00, approximately, in total fees (including tax).

[20] The Ferraros concede that their lawyer's Bill of Costs is almost identical in quantum to that of Frohlich - that is a sign of the reasonableness of Frohlich's Bill.

[21] To the approximately $34,000.00 must be added the disbursements of just over $7000.00, bringing the total to about $41,000.00.

[22] I am exercising my discretion to reduce that total amount by about $5000.00, to an even $36,000.00. That reduction is to meet one of the objectives of modern costs awards - to encourage settlement. I think that this case would have stood a better chance of settlement had Frohlich amended his claim sufficiently prior to the start of the trial. That would have been a reasonable thing to do.

IV. Conclusion

[23] The Ferraros shall pay to Frohlich costs in the total, all-inclusive amount of $36,000.00.

The Honourable Justice C.J. Conlan

DATE: July 15, 2016