Court File and Parties

COURT FILE NO.: CV-15-538471 and CV-16-547696 DATE: 20180807 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TALYN TERZIAN, Applicant – and – NIRANJAN VIVEKANANDAN and SARA AZARGIVE, Respondents

AND RE: NIRANJAN VIVEKANANDAN and SARA AZARGIVE, Applicants – and – TALYN TERZIAN and KEVIN GILMOUR, Respondents

BEFORE: E.M. Morgan J.

COUNSEL: Alan Dryer and Orly Kahane-Rapport, for the Applicant in CV-15-538471 and the Respondents in CV-16-547696 Sarah Turney and Jennifer Parker, for the Respondents in CV-15-538471 and the Applicants in CV-16-547696

HEARD: Cost submissions in writing

COSTS ENDORSEMENT

[1] On June 27, 2018, I released my reasons for judgment in this matter. The Respondents in CV-15-538471 and the Applicants in CV-16-547696, Niranjan Vivekanandan and Sara Azargive (together “Vivekanandan”), were successful in establishing an easement over the driveway portion and adverse possession over the backyard portion of a Disputed Area with their neighbours, the Applicant in CV-15-538471, Talyn Terzian, and the Respondents in CV-16-547696, Talyn Terzian and Kevin Gilmour (collectively “Terzian”).

[2] Counsel for Vivekanandan submits that they should receive costs on a substantial indemnity basis under Rule 49 of the Rules of Civil Procedure. They have produced an Offer to Settle in which Vivekanandan offered to take an easement over both portions of the Disputed Area. Since they were awarded an easement over one portion and title by adverse possession over the other, counsel for Vivekanandan says that they did better than the Offer and that the cost consequences of that success as set out in Rule 49.10 should be triggered.

[3] While I understand Vivekanandan’s counsel’s point, I do not agree that the difference between the terms of the Offer and the terms of my June 27, 2018 ruling are such as to prompt an elevated scale of costs. I see the difference as one of quality rather than quantity. Rule 49.10 is more appropriately applied to money judgments, where the question of whether the successful party has “beat” the Offer can be measured in dollars and cents.

[4] Moreover, as counsel for Terzian points out, Vivekanandan was not successful in establishing a proprietary interest to the grassy island portion of the Disputed Area. Although this was more of a detail than the centerpiece of the litigation, it is nevertheless something that should be taken into account in determining whether Rule 49.10 applies. If anything, it reconfirms my view that the Offer to Settle does not constitute a reason to award costs on a substantive indemnity scale.

[5] As the successful party, Vivekanandan does, however, deserve some costs. In my view, there is nothing in this case to prompt a departure from the usual partial indemnity scale. Although some animosity has developed between the parties, and the matter was hard fought by both sides, the litigation before me was conducted in a respectful way. Both sets of counsel argued the case zealously but intelligently on behalf of their clients. I gather that the parties on both sides demanded considerable attention from their own and each other’s lawyers, but neither set of counsel took any steps in the litigation or took any unreasonable positions that unduly lengthened the proceeding or made it more complex or difficult than it needed to be.

[6] I note that the litigation between the parties was split into two parts. I heard and decided the property title issues, but did not hear and have made no ruling with respect to the damages issue. The costs under consideration here pertain only to the real estate portion of the Application that I heard.

[7] Counsel for Vivekanandan has submitted a Bill of Costs seeking $87,750.30 in fees (including HST) on a partial indemnity scale for just the real estate portion of the case. The proceedings were complex, with Vivekanandan bringing to bear evidence from 5 independent witnesses to attest to the use of the various portions of the Disputed Area during the entire proscriptive period.

[8] The evidence filed by Terzian was also voluminous, including multiple affidavits and hundreds of photos adduced in an effort to show non-use of the Disputed Area by Vivekanandan’s predecessors in title. Both parties engaged in substantial legal research and produced factums that were detailed and thorough. The legal argument traced the history of residents in the houses and was based on a detailed analysis of the relevant case law and the uses to which the Disputed Area was put over the course of the past several decades. It was a large task on both sides.

[9] All of that establishes to my satisfaction that the costs sought by Vivekanandan’s counsel are reasonable under the circumstances. Given this overall reasonableness, I am not inclined to second guess the detailed hourly billing set out in the Bill of Costs. Counsel for Vivekanandan invested the time and effort that it took to succeed in the case, and their Bill of Costs properly reflects the principle of indemnity: see Rule 57.01(1)(0.a) of the Rules of Civil Procedure. In addition, given the efforts on both sides of this case, the costs request should not be beyond what Terzian would reasonably have expected their opponents to incur: Rule 57.01(1)(0.b) of the Rules of Civil Procedure.

[10] Terzian shall pay Vivekanandan costs in the amount of $87,750.30 for fees and HST, plus disbursements in the amount of $5,357.69, for a total costs payment of $93,107.99.

Morgan J. Date: August 7, 2018