Heng v. Rodriguez, 2016 ONSC 8077

Court File No.: CV-14-496993 Date: 2016-12-21 Superior Court of Justice - Ontario

Re: Gek Choo Heng and Aik Kim Heng, Applicants And: Ramos Rodriguez and Amador Rodriguez, Respondents

Before: Sean F. Dunphy

Counsel: Hashim Syed, for the Applicants Brian Diamond, for the Respondents

Heard: In Writing

Costs Endorsement

[1] This application involving a very unfortunate dispute between two neighbours was decided by me on March 30, 2015. The application involved issues of nuisance and adverse possession. I was able to dispose of the adverse possession issue but ordered a mini-trial to be conducted on the nuisance issue. My ruling reserved the question of costs to the hearing of the remainder of the application subject to my retaining a discretion to make an earlier ruling.

[2] My ruling on the adverse possession question was appealed and the appeal was ultimately dismissed. The application accordingly remained alive on the issue of nuisance. However, the prescribed timetable for a mini-trial unfortunately fell by the boards as a result of the time consumed in pursuing the appeal.

[3] The nuisance issue being a relatively modest one in terms of economic impact, the applicants ultimately determined for economic reasons that they had spent what they could afford on this litigation and abandoned the remainder of their claim. They did so aware of the fact that doing so left them exposed to costs.

[4] I have been asked to fix costs of the respondents on the application in light of their successful appearance on the adverse possession issue and in light of the abandonment of the remainder of the application.

[5] The applicants have surrendered. They feel they have spent as much as they can afford pursuing their claim. Their nuisance claim, they point out, was not abandoned on the merits but for economic reasons. They ask that each party should bear their own costs and plead that they acted reasonably in attempting to resolve matters before resorting to litigation.

[6] On this point, I must give the applicants some considerable credit. In my initial ruling, I urged the parties to consider spending the funds they might otherwise devote to pursuing a trial on the nuisance issue to finding a means of mitigating the nuisance that the respondents’ construction was causing. I did so because there was quite clear evidence before me that the respondents’ construction was indeed causing some damages to the neighboring lot and a small amount of effort and engineering ingenuity could doubtless resolve the problem at lower cost than could be expected through resort to litigation. The record before me was simply too thin to resolve the question fully.

[7] It is regretful that the neighbours have not found a way to patch their relationship to the point of working together to solve a common problem. The law is a very blunt instrument in cases such as this.

[8] The respondents on the other hand submit that they have prevailed on the application. They were successful in making their case for adverse possession and the rest of the application was abandoned. They ask for costs of $21,301.33 calculated on a substantial indemnity basis or, in the alternative $16,869.47 on a partial indemnity basis.

[9] I cannot agree that substantial indemnity costs are called for in this case. The applicants’ survey demonstrated that the retaining wall had been built on the land deeded to the applicants. Successful adverse possession cases are quite unusual and rare. They did not act unreasonably in pursuing a claim. The nuisance case was far from a frivolous claim. The evidence was quite clear that there was some nuisance being created by the construction – how much and to what degree was far from established.

[10] In the very particular circumstances of this case, I am very disinclined to award costs on the basis that anyone has been “victorious” and I certainly cannot find that anyone’s position was frivolous. The application was withdrawn it is true, but it was not decided. Both sides need to temper their desire for vindication. The applicants have swallowed a bitter draught by agreeing to walk away from their remaining claim. The applicants have saved the respondents expense on a claim that they had legitimate reason to expect some degree of success on. Enough damage has been inflicted in court and an award of costs will aggravate the situation and satisfy nobody.

[11] I am exercising my discretion in this case to award no costs at all. I do so with some trepidation. I am aware that the nuisance claim could spring to life again in future like a brush fire that is smouldering underground without being fully extinguished. However, the discretion that I have exercised in favour of the applicants and in consideration of all of the circumstances before me is a discretion that is being exercised for reasons that are being recorded for posterity. Should the neighbours find themselves unable to live in peace in future without resort to the court, the discretion granted here will be on full view for a future judge to consider in allocating costs on a future application (the need for which, I trust, will not arise). It will be open to a future judge to consider whether my optimism has been misplaced.

[12] I am therefore ordering that there shall be no costs of this application. The application has been abandoned save and except as to the issues as to title decided by me on March 30, 2015.

S.F. Dunphy, J.

Date: December 21, 2016