Citation: Osman v. Heath, 2016 ONSC 6414
COURT FILE NO.: 12-0647
DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamal Osman and Mohamad Ossman
Applicants
– and –
Kelly Anne Heath and Robert K. Toole
Respondents
COUNSEL:
Stefan Cyr, for the Applicant
Craig M. Bater and Emily G. Villeneuve, for the Respondents
DISPOSITION AS TO COSTS
C. MCKINNON J.;
[1] My decision in this matter was released on July 26, 2016, and is reported at 2016 ONSC 4812. The parties have been unable to agree on costs and have made submissions with respect to the appropriate disposition.
[2] The Respondents were completely successful at trial and the submissions reveal that offers to settle were made by the Respondents to the Applicants which, in my view, were more than reasonable. The Applicants’ counterproposals with respect to the settlement of the action demanded a total amount of $40,000 for the transfer of the portion of land in question together with legal fees which, in my view, was unreasonable.
[3] The Applicants take the view that the case was novel and that no costs should be awarded. I disagree. This case was a classic case of adverse possession and cannot be termed ‘novel’.
[4] In addition, the Applicants object to the claim on the part of the Respondents for receiving any compensation for legal fees incurred in converting what was originally an application into an action with witnesses being heard and cross-examined viva voce. In my view, the main issues in this case related to the credibility of witnesses. The case could not have been resolved on the basis of affidavits. The witnesses had to be seen, heard and assessed by a trial judge. Consequently the costs involved in converting the application into an action should be compensated.
[5] In my view, there is no reason to award substantial indemnity costs as claimed by the Respondents. There was merit in having this dispute resolved, given the credibility issues and, as a result, an award of partial indemnity costs is appropriate.
[6] Partial indemnity costs incurred by the respondents inclusive of fees, disbursements and HST amount to $53,605.26. Substantial indemnity costs being sought amount to $76,969.81. Full indemnity costs would be $84,757.99.
[7] The Respondents shall be entitled to partial indemnity costs, inclusive of disbursements and HST, fixed in the amount of $53,605.26, payable forthwith.
Mr. Justice Colin McKinnon
Released: October 17, 2016.
CITATION: Osman v. Heath, 2016 ONSC 6414
COURT FILE NO.: 12-0647
DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamal Osman and Mohamad Ossman
Applicants
Kelly Anne Heath and Robert K. Toole
Respondents
disposition as to costs
C. McKinnon J.
Released: October 17, 2016.