Court File and Parties

COURT FILE NO.: 18-64530 (Hamilton)

DATE: 2018/05/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KRISTA LEIGH ANN KATHERINE HARRINGTON, HARRINGTON LANE FARMS LTD. and HARRINGTON LANE FARMS INC., Applicants

AND:

THE ESTATE OF DANIEL NORMAN LANE, Deceased, and BRANDON DANIEL ALDON LANE, Respondents

BEFORE: Justice D.A. Broad

COUNSEL: Shayna A. Beeksma, for the Applicants

Christopher L. Dilts, for the Respondents

costs ENDORSEMENT

[1] The parties have been unable to settle the issue of costs and have delivered their submissions on costs.

[2] The applicants claim costs against the respondent Brandon Daniel Aldon Lane (“Brandon”) or alternatively, against Brandon, personally, and against the Estate of Daniel Norman Lane (the “Estate”) on a substantial indemnity basis in the sum of $12,695.50 comprised of fees in the sum of $10,867.50, HST on fees in the sum of $1,412.77 and disbursements and HST thereon in the sum of $415.23.

[3] The applicants say that they were largely successful on the motion and that Brandon and the Estate engaged in reprehensible and deceptive conduct in disposing of a significant number of the farm animals, forming part of the subject matter of the interim injunction motion, prior to the return of the motion and failing to disclose their conduct in this regard to the applicants or to the court.

[4] Brandon and the Estate claim costs against the applicants on a partial indemnity basis in the sum of $12,452.86 comprising of fees in the sum of $10,367.77, HST on fees in the sum of $1,347.81, disbursements in the sum of $670.03 and HST on disbursements in the sum of $66.95. Brandon and the Estate submit that they were largely successful on the motion in that the only part of the motion in which the applicants were successful was in gaining access to the livestock. They were not successful in getting access to the residential home nor to the farm equipment, apart from a few specific items which were explicitly acknowledged.

[5] Brandon and the Estate admit that certain hogs of minimal value were removed from the property, but this happened long before any order was granted preventing the removal of animals and were removed due to safety concerns. The animals removed were of minimal or no value. They deny that any other animals were removed from the property. Moreover they submit that they were never asked by the applicants to confirm livestock numbers and no inquiry was made prior to bringing the motion or at any time before it was heard. Brandon and the Estate submit that if there are allegations of missing livestock they should have an opportunity to test the allegations through cross-examination and to make full answer.

[6] Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, provides that "subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the cost shall be paid."

[7] In my view is not appropriate in the circumstances to take into account, on the issue of costs, the allegations made by the applicants with respect to disposal of farm animals by Brandon and/or the Estate. Although substantial indemnity costs may be awarded where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties, the conduct attracting such an award is usually in reference to the conduct of the proceeding itself.

[8] If indeed Brandon and/or the Estate committed conversion of the applicants’ property or another wrongful act, the applicants have a remedy by means of a claim for damages. It would be unfair to punish Brandon and the Estate in costs without affording them an opportunity to fully respond to the allegations. There would also be a risk of double compensation to the applicants by means of a costs award and an award of damages.

[9] I find that success on the applicants’ motion for an interim injunction was divided relatively equally in reference to the time spent, both in preparation and at the hearing of the motion.

[10] The applicants and the respondents Brandon and the Estate shall each bear their own costs of the motion.

[11] No order as to costs.

D.A. Broad

Date: May 25, 2018