Citation and Court File
Citation: Kuhnle v. Fisher, 2017 ONSC 3336 Court File No.: 15-66151 Date: 2017-05-30
Superior Court of Justice - Ontario
Between:
IRENE MARGARET KUHNLE Applicant – and – REGINALD MAX FISHER and CORINNE ANN FISHER Respondents
Counsel: R. Gouin, and J. Dagher for the Applicant P. Weber, for the Respondents
Heard: In writing
RAY, J.
Costs Reasons
[1] I granted the applicant’s application for a prescriptive easement across the respondent’s property in narrowly defined terms consistent with the evidence before me. (2017 ONSC 2905).
[2] The parties filed costs outlines at the conclusion of argument, and now have filed their submissions. The applicant seeks substantial indemnity costs of $72,910.07 on the ground that she was the successful party. The respondent seeks partial indemnity costs in the amount of $21,405.95 on the ground that the respondent had offered to assist the applicant in obtaining an easement otherwise than across the respondents’ property; and further, that the order I granted would not permit development of the Kuhnle property which they claim is what the claim was all about. In other words, they claim to be the successful parties.
[3] Firstly I find the applicant’s claim for $72,910.07 of a total of $89,000 costs in the costs outline to be breath-taking. The property is one of modest value. Had I granted a full right-of-way to permit the applicant to develop the property, I would have found such a claim totally disproportionate. Argument occupied half a day. The applicant’s materials were thin. Two counsel were involved. The hourly rates charged did not properly reflect the principle of proportionality. Leaving aside the quantum, which I find outrageous, no reasons at all were advanced for an award on a substantial indemnity scale.
[4] Having regard to the materials filed by the respondents as part of their costs submissions, development of the property was clearly a live issue. That was never raised in argument however.
[5] On balance, I consider that the parties should bear their own costs. The applicant was seeking a right-of-way in very different terms than those I ordered. She sought an order unlimited in its terms. The respondents had never objected to the applicant’s occasional use of their driveway to access her property. What the applicant got by way of a court order reflected what she had been doing. Had she not brought her application, it is quite likely that her occasional use would have continued. Had there been an offer from the respondents to acknowledge in writing her occasional use, as was ordered, I would have considered an award of costs to the respondents; but there was not.
[6] As a consequence, there will be no order as to costs. Each of the parties shall bear their own costs.
Honourable Justice Timothy Ray