Court File and Parties

COURT FILE NO.: CV13-0561 DATE: 20180730

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: White and Magwood v. Curtis

BEFORE: Mr. Justice Brian W. Abrams

COUNSEL: Keith A. MacLaren, for Gordon White and Mary Magwood, Plaintiffs/Defendants by Counterclaim Neville C. Johnston, for Borden Curtis and Jana Curtis, Defendants/Plaintiffs by Counterclaim

COSTS ENDORSEMENT

ABRAMS J.

Introduction

[1] This trial focused on land owned by the Defendants/Plaintiffs by Counterclaim (“Defendants”) known as Part 6, as referenced on Plan 28R13795. At issue was the nature and extent of the “right-of-way” described on the Plaintiffs’/Defendants by Counterclaim (“Plaintiffs”) Transfer/Deed of Land Certificate over, inter alia, Part 6 to the “north shore of Upper Beverly Lake”. The Plaintiffs contended that they had an express right-of-way over a portion of the Defendants’ property including, but not limited to, Part 6. The Defendants asserted that the right was a personal licence only, which was not transferrable.

[2] As in most cases involving disputes over real property, the parties were emotionally invested in the litigation to the point of lifelong friendship being harmed, perhaps irreparably so. As I commented on in my Reasons for Decision, the two main protagonists, Gordon White and Borden Curtis, were childhood neighbours and friends. In my view, had they been left to sort these issues out between themselves, quite likely there was enough of a history of friendship, neighbourliness and old-fashioned country, common sense that they may reasonably have resolved matters in an amicable way. Regrettably, that was not to be.

The Result

[3] I concluded that Elton Curtis could never have intended that vehicular traffic would extend from the right-of-way over Part 6 to the north shore of Upper Beverly lake for, inter alia, the following reasons:

(1) The weight of the evidence showed that he did everything reasonably possible to keep vehicles out of Part 6; (2) He specifically excluded and designated Part 6 for “cattle use” in making application to sever cottage lots from the farm in 1962; (3) Part 6 was used for watering cattle up to and including the time of the Plaintiffs’ occupation of 707 Daytown Road; (4) Annie Mendelson, the original owner of 707 Daytown Road, never lived in the residence, and thus there was no history of her use of Part 6; (5) The Wilsons succeeded Ms. Mendelson, and the evidence of their use of Part 6 was restricted to launching their canoe, on foot; (6) The Plaintiff, Mary Magwood, was, at best, an infrequent pedestrian along the right-of-way; (7) Similarly, the Plaintiff, Gordon White, used Part 6 relatively few times each winter for ice fishing outings, which he described as “therapeutic and recreational” only; and (8) Thus, the right enjoyed by the Plaintiffs over the land of the Defendants did not possess the status of an easement because, although it confers an advantage, it is not reasonably necessary for the better enjoyment of 707 Daytown Road. It is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties, which is all that Elton Curtis could ever have intended.

Positions of the Parties

[4] The Defendants contend that as the successful parties they are entitled to their substantial indemnity costs of $85,578.50 inclusive of disbursements and HST.

[5] The Plaintiffs agree that the Defendants are entitled to their costs of the Action and the Counterclaim. The Plaintiffs further agree with the Defendants’ claim for disbursements and HST totaling $2,014.66. The Plaintiffs do not quarrel that the Defendants made an Offer to Settle, dated July 10, 2014, in accordance with Rule 49 of the Rules of Civil Procedure, which would thus entitle them to their reasonable fees, on a substantial indemnity basis, from that date. The Plaintiffs do not agree; however, that the unsigned Minutes of Settlement, prepared on the eve of trial, qualify as a Rule 49 Offer. In the result, the Plaintiffs assert that substantial indemnity costs should be fixed and made payable to the Defendants in the sum of $51,157.13, inclusive of fees, disbursements and HST.

Law

[6] Subsection 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43 preserves the overarching discretion of the court with respect to costs:

131(1) Subject to the provisions of an Act or rules of the 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 costs shall be paid.

[7] Rule 57.01(1) of the Rules sets out the factors to be considered, specifically:

(1) Complexity of the issues: Both the legal and factual issues were of reasonable complexity, particularly relating to the Plaintiffs’ claim for prescriptive rights. (2) The importance of the issues: The issues were of significant importance to both sides of the dispute, as contests in respect of real property usually are. (3) Conduct of any party: The Plaintiffs’ admission that the Defendants are entitled to all of their reasonable fees, on all issues, renders this factor moot. (4) Experience of the party’s lawyer: Counsel for the Defendants has practiced law for over 51 years. The hourly rate of $300 for full indemnity is reasonable. (5) The hours spent: This is where counsels’ submissions diverge significantly. Counsel for the Defendants contends that the dockets filed in support of the hours worked substantiates the amount claimed, and within the range that the Plaintiffs ought to have reasonably expected. The Plaintiffs point out that the hours spent on trial preparation alone represents a 333% differential between the parties: 150 hours for the Defendants versus 45 hours for the Plaintiffs. Moreover, the Defendants claim 275 hours in total, while the Plaintiffs claim 135.8 hours. (6) Additional factors: The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 395, [2009] O.J. 1905 confirmed that the modern costs rules are designed to foster three fundamental purposes, namely to partially indemnify successful litigants for the cost of litigation, to encourage settlement and to discourage inappropriate behaviour by litigants, bearing in mind that the awards should reflect what the court views is a fair and reasonable amount that should be paid by the unsuccessful party.

Further, costs must be proportionate to the amount at stake. The court must step back and exercise a judgment, having regard to all of the circumstances, as to what fair and reasonable amount should be paid by the unsuccessful party, rather than an exact measure of the actual costs to the successful litigant is: Boucher v. Public Accountants Council for the Province of Ontario. Cited with approval in Serra, supra.

Conclusion

[8] While I do not for a moment doubt the number of hours worked by counsel for the Defendants, it is difficult to reconcile the 333% disparity between the parties spent on trial preparation alone. To allow 6 hours of trial preparation, for each hour of trial, would be unreasonable, and not reasonably expected, in my view. I would reduce the Defendants’ total hours by 33%, bring the figure down to 185 hours x $300 = $55,500. To that figure I would add $2,014.66, representing the Defendants’ claim for HST and disbursements, for a total of $57,514.66.

Mr. Justice Brian W. Abrams

DATE: July 30, 2018

COURT FILE NO.: CV13-0561 DATE: July 30, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: GORDON WHITE and MARY MAGWOOD Plaintiffs/Defendants by Counterclaim

• and – BORDEN CURTIS and JANA CURTIS Defendants/Plaintiffs by Counterclaim

COSTS ENDORSEMENT Abrams, J.

Released: July 30, 2018