Court File and Parties

Court File No.: 10700/15 Date: 2016/09/15

Ontario Superior Court of Justice

Between:

Wolfgang Schnieber, Applicant J. Ross Macfarlane, for the Applicant

- and -

Bruce Reginald Kenneth Saalmans and Carole Saalmans, Respondents Brent K. Harasym, for the Respondents

The Honourable Justice T. Maddalena

Endorsement on Costs

1I heard this application at Welland, Ontario on April 22, 2016. I released my decision on July 22, 2016.

2Cost submissions were due in writing, with the applicant’s due by August 5, 2016 and the respondents’ by August 19, 2016. I have received and reviewed cost submissions of both the applicant and the respondents.

The Position of the Applicant

3The applicant requests costs on a substantial indemnity basis fixed at $21,899.66.

4In the alternative, the applicant submits that costs should be awarded on a partial indemnity basis fixed at $15,570.95.

5The applicant submits that the respondents had no authority to interfere with an express registered mutual right-of-way, and that this litigation was totally unnecessary.

6The applicant submits that he advised the respondents by correspondence, prior to the commencement of litigation, that the applicant would be seeking full indemnity legal costs. As no response was received to the correspondence, litigation was commenced by way of an application by the applicant in September 2015.

7The hearing of the application was originally scheduled for February 23, 2016 but was ultimately adjourned at the request of the respondents. The court ordered the respondents to pay $2,500 in costs to the applicant as costs thrown away.

8Subsequently, the respondents filed additional affidavit materials. Two of the deponents who filed further affidavits for the respondents did not attend cross-examinations and, consequently, at the hearing their evidence was struck.

9Further, at the hearing, the respondents made a significant concession that the chain link fence would have to be removed and the only remaining issue was a much smaller board fence.

10Further in the applicant’s cost submissions, he seeks that I clarify paragraph 41(4) of my decision in that the respondents, at their own expense, should register the orders of the court.

The Position of the Respondents

11The respondents have retained new counsel who has prepared cost submissions. The current counsel noted that, the “litigation was unfortunate” and the litigation ought to have been avoided.

12The respondents’ counsel submits that the respondents were “unfortunate victims of ineffective representation”.

13Further, counsel suggested that the adjournment and new affidavits were filed as a result of prior counsel’s “misapprehension of the issues” and not due to any acts of the respondents. Current counsel also noted that prior counsel’s concession regarding the chain link fence made at the hearing was without the knowledge or instructions of the respondents.

14Counsel also requests that I not amend my order as requested in paragraph 41(4) as this is a variation of the order.

15The respondents submit that $10,000 in costs, inclusive of disbursements and HST, is an appropriate award of costs under these circumstances.

Analysis

16Rule 57.01 of the Rules of Civil Procedure, guides this court in the determination of costs and various factors for consideration.

17The court ultimately has discretion in the award of costs. This is also confirmed by s. 131 of the Courts of Justice Act, R.S.O. 1990, c.43.

18Further, the Court of Appeal has held in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, that the overall objective in fixing costs is to fix an amount that is fair and reasonable, having regarding to those factors in Rule 57.01 for the unsuccessful party to pay, rather than an amount fixed by actual costs incurred.

19However, a number of observations are important for the court’s consideration.

20The respondents were advised by correspondence by the applicant’s counsel prior to the litigation that the applicant would be seeking substantial indemnity costs in this application. The applicant agrees that no formal offer to settle was submitted by either of the parties.

21There was an adjournment of the first hearing at the request of the respondents. The applicant has already been compensated for that adjournment by costs thrown away ordered by the court at that time.

22The adjournment was followed by the filing of a second group of affidavits on behalf of the respondents and a second attendance at cross-examination on affidavits. However, that cross-examination proved unhelpful to the issues before the court. Two deponents did not attend after the applicant’s counsel had already prepared for the cross-examination and was in attendance at the cross-examination.

23Further, a major concession was made by the respondents’ counsel at the hearing. No explanation was provided as to why this was done in this manner. I conclude that the applicant and applicant’s counsel heard the concession for the first time while the respondents’ counsel was making submissions.

24Current counsel for the respondents has made reference to “ineffectual representation” by the respondents’ former counsel, however, that issue is not before me.

25Lastly, I conclude from the Bill of Costs submitted that the hourly rate charged by the applicant’s counsel is fair and reasonable, given the years of experience.

26For all of the aforementioned reasons, I conclude that this is a case that must attract more than partial indemnity recovery of costs.

27Even if it is determined at some later time and hearing that this is a case of “ineffectual representation” of the respondents, then the fair and reasonable conclusion is that this cannot be, nor should it be, the applicant’s issue and at the applicant’s expense.

28Therefore, I conclude that the fixing of costs in the amount of $20,000 all-inclusive is fair and reasonable given all of the circumstances in this case.

29Further, it is appropriate to clarify para. 41(4) of my earlier order to provide that the order of this court shall be registered on title to both 105 Fares Street and 109 Fares Street, Port Colborne, Ontario at the expense of the respondents.

Maddalena J.