CITATION: Brown v. Savage, 2017 ONSC 5218

COURT FILE NO.: 15-64235

DATE: 20170901

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN CHARLES BROWN and JOANNE MUGGETTE BROWN

Applicants

– and –

KAREN SAVAGE

Respondent

Joseph W.L. Griffiths, for the Applicants

Ronald F. Caza, for the Respondent

AND BETWEEN:

COURT FILE NO.: 16-67511

KAREN SAVAGE

Applicant

– and –

JOHN CHARLES BROWN and JOANNE MUGGETTE BROWN

Respondents

Ronald F. Caza, for the Applicant

Joseph W.L. Griffiths for the Respondents

HEARD in writing

MEW j.

COSTS ENDORSEMENT

[1] Disputes between neighbours engender strong emotions. This case was no exception.

[2] For 21 years, John and Joanne Brown and members of their family have been able to access their property and home using a laneway which crosses the property next door to theirs.

[3] Karen Savage bought the property next door in July 2013. She felt that the Browns’ use of the laneway encroached on her enjoyment of her property.

[4] In January 2015, a lawyer’s letter was sent to the Browns telling them that Ms. Savage would no longer permit them to use the laneway and providing them with 60 days to arrange for alternative access.

[5] Soon after, matters escalated when Ms. Savage blocked the laneway, preventing the Browns from accessing their home except by foot. This led to an intervention by City of Ottawa by-law enforcement officials and the Ottawa Police. Ms. Savage was warned not to block the laneway.

[6] On 5 April 2015, Ms. Savage blocked the laneway again. As a result, she was charged with a violation of section 2(1) of the Road Access Act, R.S.O. 1990, c.R.34 and for mischief and obstruction of property contrary to section 430(1)(c) of the Criminal Code of Canada.

[7] The Browns then commenced an application in which they asserted that they had acquired the laneway through adverse possession, or alternatively, that they enjoyed a prescriptive easement or in the further alternative, that the laneway was properly characterised as an “access road” within the meaning of section 1 of the Road Access Act, and that, accordingly, the road ought not to be closed.

[8] Sometime later, Ms. Savage commenced her own application, seeking a declaration that, among other things, she owns the laneway, that there is no easement or encumbrance on the laneway, and that a closing order should be made in her favour in respect of the laneway, pursuant to section 2(1)(a) of the Road Access Act.

[9] On 17 July 2017, I ruled against the Browns. I rejected the claims for adverse possession and prescriptive easement and found that it was not necessary for Ms. Savage to obtain a road closing order because the Browns had a viable alternative access route to the property: see reasons reported at 2017 ONSC 4357.

[10] My decision gave the Browns one year to implement alternative access to their property (which will require the construction of a parking pad and may require planning or other regulatory approvals). Certain other aspects of my order were suspended for twelve months to enable that to occur.

[11] I indicated that as Ms. Savage had been substantially successful, she was presumptively entitled to her costs of the applications. I indicated that if counsel were unable to agree costs, they should deliver written submissions on:

(a) to whom costs should be awarded;

(b) scale of costs (including any rule 49 considerations that may be applicable); and

(c) quantum.

[12] The parties did not agree on costs and, accordingly, I have now received and considered their submissions.

[13] To further set the scene, I repeat part of paragraph 55 of my Reasons for Decision on the applications:

… the correct approach is that intimated by … Simmons J.A. in Limlaw v. Ryan (2009), 2009 ONCA 832, 99 O.R. (3d) 514 (C.A.) where, in footnote no. 2 to her reasons, she stated:

… it is inadvisable for a landowner to erect a barrier that excludes a neighbour from a private road without first obtaining a declaration that the neighbour has alternate access if that issue is controversial. Otherwise, the landowner runs the risk of violating the prohibition in s. 2 and committing an offence under s. 7.

[14] Regrettably, Ms. Savage did not take the approach recommended by Simmons J.A. Rather, she attempted to exclude the Browns, knowing that by doing so she was effectively preventing them from accessing their property.

[15] Litigation inevitably followed.

[16] The awarding of costs in a proceeding is discretionary: Courts of Justice Act, R.S.O. 1990, c.C.43, s.131. It is a discretion which must be exercised in light of the facts and circumstances of the case and any applicable rules of the court (principally rule 57.01 and rule 49.10 of the Rules of Civil Procedure, R.R.O. 1990, reg.194 (as amended)).

[17] Although the usual approach is that costs follow the event, premised on a two-way or loser-pay, costs approach, the court has discretion not to award costs or even to award costs against a successful party where the conduct of that party justifies such an order.

[18] In the present case, Ms. Savage seeks costs of the two applications on a partial indemnity basis up until 22 April 2016, when a rule 49 offer to settle was delivered, and on a substantial indemnity basis thereafter. The total amount claimed by her, inclusive of disbursements and H.S.T., is $43,750.09.

[19] The Browns argue that because of Ms. Savage’s conduct, there should be no order as to costs. Alternatively, if the court deems it appropriate to award costs, the Browns argue that the amount awarded should not exceed $10,000 on a basis that Ms. Savage did not, in fact, achieve a better outcome than her offer to settle and because her case was over-lawyered.

[20] At the end of the hearing, and before the result was known, the Browns submitted a costs outline which put partial indemnity fees at $9,468.27 (inclusive of H.S.T.) and substantial indemnity fees at $15,780.45. Disbursements were $1,309.07 (inclusive of H.S.T.)

[21] The offer to settle made by Ms. Savage provided that the Browns would concede that they have no legal or other interests in the property, that they build a parking pad, laneway and/or alternative form of access to their property within three months, after which time access would be blocked off, and pay Ms. Savage’s partial indemnity costs as agreed or assessed to the date of the offer and substantial indemnity costs thereafter.

[22] It should be recorded that the Browns also offered to settle both applications, by agreeing that they had no legal interest in the property and that they would pay for modifications to the existing road to enhance Ms. Savage’s access to her property and parking, thereby allowing both parties to use the road without interfering with one another. The offer included a term that the applications be dismissed on a without costs basis.

[23] The outcome ultimately achieved by Ms. Savage was close to, but not as or more favourable than, the result she ultimately obtained. Instead of the three months’ grace period proposed in Ms. Savage’s offer, the Browns were given twelve months to put in place alternative access, and were also given liberty to further apply to the court if planning or other logistical difficulties were encountered that would render it appropriate for the court to consider different relief to that originally awarded.

[24] I do not regard this as a situation where the costs consequences of rule 49.10 apply.

[25] It was a matter of great importance to both parties to clarify their respective rights vis-à-vis use of the laneway. However, the unilateral action taken by Ms. Savage to block access was provocative and resulted in proceedings being far more contentious than they needed to be.

[26] One of the enumerated factors to be considered under rule 57.01 is whether the conduct of any party has tended to shorten or lengthen unnecessarily the duration of the proceeding. Furthermore, conduct generally can be a relevant consideration for a court when exercising its discretion to award costs.

[27] Ultimately, Ms. Savage was, of course, successful, hence my previous comment that she is presumptively entitled to an award of costs in her favour. However, she should not be indemnified for costs which were unnecessarily incurred. Furthermore, her actions not only provoked litigation but also set an antagonistic tone for what followed. I have taken these factors into account in determining the quantum of costs.

[28] I would add that while I do not accept the Browns’ criticisms of the engagement of senior counsel to argue the application, there does appear to have been some slippage or overlap, in terms of time spent, as a result of a change of principal counsel with carriage of the file for Mr. Savage prior to the hearing of the application, as well as the concurrent involvement of senior and junior counsel.

[29] There is also, of course, always regard to be had to the principle of proportionality, as well as to the reasonable expectations of the party paying costs (there is a significant difference between the parties’ bills of costs, even allowing for the fact that Ms. Savage incurred expert witness fees whereas the Browns did not).

[30] Taking into account all of these factors, I fix the costs of these applications, payable by the Browns to Ms. Savage, in the all-inclusive amount of $15,000.

Graeme Mew J.

Released: 01 September 2017