Vander Hoeven v. Martineau, 2016 ONSC 4994

CITATION: Vander Hoeven v. Martineau 2016 ONSC 4994

COURT FILE NO.: CV-13-092

DATE: 20160804

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ary Vander Hoeven and Jeanne Marion Vander Hoeven Applicants, Respondents by Cross Application

– and –

William Alfred King and Debbie Martineau Respondents

COUNSEL:

Andrew Mae, for the Applicants and Respondents by Cross Application

D. Andrew Thomson, for the Respondents and Applicant by Cross Application

-and-

Debbie Martineau, Applicant by Cross Application

HEARD: June 20, 2016

BEFORE: E.J. Koke J.

DECISION ON COSTS

BACKGROUND

[1] This case involved easement/right-of-way issues raised by the applicants (“The Vander Hoevens”) and the cross applicant (Debbie Martineau). The respondent William Alfred King did not participate in the litigation and was noted in default.

[2] In their application the Vander Hoevens requested among other things:

a) an order rectifying the title deeds to their property (the “Vander Hoeven property”) and the property owned by Debbie Martineau and her spouse, William Alfred King (the “Martineau property”) so as to give effect to their right to park on the right-of-way/easement (“right-of-way”);

b) an order directing Ms. Martineau and Mr. King from impeding their use of the right-of-way;

c) an order directing Ms. Martineau and Mr. King to remove fencing, signs and other obstructions along the right-of-way;

[3] In her cross application Ms. Martineau requested an order limiting the “terminus” of the right-of-way to 12 metres at the north-east corner of the right-of-way and for a declaration that the right-of-way did not entitle the applicants to park on it.

[4] Shortly before the hearing, the court was advised that the parties had reached agreement on most of the issues raised in the applications. The court was provided with an agreed statement of facts and draft orders for its consideration and the hearing proceeded on the remaining issues as an application without oral evidence being called.

THE ISSUES

[5] Two issues remained to be decided by the court.

[6] The first issue pertained to the costs of the applications. I ordered the parties to file written submissions in relation to this issue following the release of my decision.

[7] The second issue was referred to by the parties in their submissions as the “terminus” issue. The terminus issued involved the question of whether the applicants were permitted to cross over to their property from the easement, which bordered the boundary line separating the properties.

DECISION ON COSTS

[8] I have considered the cost submissions filed by the parties, together with their costs outlines.

[9] I have taken into account the factors enumerated under Rule 57, including the time spent, the result achieved, and the complexity of the matters, as well as the application of the principle of proportionality. In addition, I have considered the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario(2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) and Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.

[10] I conclude that an award of costs in the amount of $48, 105.58 inclusive of HST and disbursements, payable by the respondents to the applicants, is a reasonable one in the circumstances, and I order they pay to the Applicants that amount within 30 days. This is the sum referred to in the applicants’ costs submissions as their costs payable on a partial indemnity basis.

[11] In making my decision, I gave significant weight to the following considerations.

[12] Firstly, the fact that the applicants eventually achieved substantial success on the application and cross-application.

[13] Secondly, the Vander Hoevens made numerous settlement offers throughout the course of this litigation, which were generous and fair, but these offers were not accepted by the defendants.

[14] Thirdly, I find that the hourly rates charged by the lawyers for the applicants were fair and reasonable.

[15] Fourthly, the court record reveals that substantial delays were incurred throughout the litigation, and in my view these delays resulted directly from a lack of cooperation and diligence by the respondents. Considering their conduct throughout the litigation, I would have had no hesitation in awarding costs against them to the applicants on a substantial indemnity basis had she not eventually agreed to settle almost all of the issues.

[16] Fifthly, although most of the issues were eventually resolved on the basis of an agreement, this agreement was not reached until the eve of trial, and the applicants still incurred considerable costs in relation to these issues.

E.J. Koke J.

Released: August 4, 2016