Court File and Parties

COURT FILE NO.: CV-13-041 DATE: 20180817 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ROGER BLANCHARD and DONNA BLANCHARD Plaintiffs – and – DONALD TRIPP, ETHEL TRIPP, STEVEN TRIPP and JOYCE LAVALLE Defendants

Counsel: Daniel J. Wyjad, for the Plaintiffs Michael M. Miller, for the Defendants

HEARD: In Writing

Decision on Costs

WILCOX J.

Introduction

[1] The decision in this matter invited written costs submissions which have been received and considered.

[2] The defendants seek their costs of the plaintiffs’ motion for summary judgment and their costs of the main action as it relates to the public highway issue. A separate bill of costs was submitted for each of the motion and the main action. The defendants were wholly successful in having the plaintiffs’ motion for summary judgment dismissed and in having the balance of the main action dismissed.

[3] S. 131 of the Courts of Justice Act leaves the costs of a proceeding to the discretion of the court. Rule 1.04(1) requires the court to make orders and give directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding. Rule 57 of the Rules of Civil Procedure sets out the factors to be considered by the court, in addition to the result in the proceeding and any offer to settle, in exercising this discretion.

[4] “Modern costs rules are designed to foster three fundamental purposes:

a. To indemnify successful litigants for the cost of litigation;

b. To encourage settlements; and

c. To discourage and sanction inappropriate behaviour by litigants.” [1]

[5] “The costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.” [2]

[6] As the successful parties, the defendants are presumptively entitled to their costs in this matter on a partial indemnity basis.

The Application

[7] This case began by Notice of Application. It was converted to an action by an order of September 21, 2015. At times, reference was made during submissions to the application documents because better copies of some records were found there.

The Action

[8] In the main action, the plaintiffs claimed:

a. A declaration that the road known as Trussler Road is a public highway.

b. In the alternative to paragraph (a), a declaration that Trussler Road is a common road as defined under the Road Access Act, R.S.O. 1990, c. R.34.

c. In the further alternative to paragraphs (a) and (b), a declaration that Trussler Road is an access road as defined under the Road Access Act, R.S.O. 1990, c. R.34.

d. An interim and permanent mandatory injunction preventing the defendants Donald Tripp, Ethel Tripp, Steven Tripp and Joyce Lavalle from closing, barricading or otherwise blocking the plaintiffs’ access over Trussler Road, as the means of access to and from the plaintiffs’ properties.

e. General damages in the amount of $150,000.00.

[9] The defendants counter claimed for:

a. A declaration that Trussler Road is not an access road as defined by the Road Access Act, R.S.O. 1990, c. R.34;

b. A declaration that Trussler Road is not a common road as defined by the Road Access Act, R.S.O. 1990, c. R.34;

c. In the alternative, if Trussler Road is an access road or a common road as defined by the Road Access Act, R.S.O. 1990, c. R.34, an order closing such road pursuant to s. 3 of the Road Access Act, R.S.O. 1990, c. R.34 in accordance with sections 3(1) (a), (b) and (c).

[10] Both sides brought motions for summary judgment in this matter. Both motions for summary judgment were before RSJ Gordon on February 13, 2017.

[11] The defendants’ motion was for partial summary judgment to dismiss the plaintiffs’ claims for declarations that Trussler Road is an access or a common road as defined by the Road Access Act, R.S.O. 1990 c. R.34.

[12] The plaintiffs’ motion was for declaration that Trussler Road is a public highway or, in the alternative, that it is a common road or an access road under the Road Access Act.

[13] RSJ Gordon dismissed the plaintiffs’ claims for declarations that Trussler Road is a common road or an access road as defined in the Road Access Act, R.S.O. 1990 c. R.34 and granted the defendants’ request for a declaration that it was neither of those.

[14] He adjourned the plaintiffs’ motion that sought a declaration that Trussler Road is a public highway because the defendants had not received adequate notice of it to argue it then.

[15] The plaintiffs then brought an amended Notice of Motion for Summary Judgment for a declaration that the road commonly known as Trussler Road, extending from Beachey Drive in Lot 11, Concession 14 through to the east limit of Lot 12 in Concession 13 in the Township of Laurier in the District of Parry Sound, is a public road.

[16] I dismissed both the plaintiffs’ motion for summary judgment and the balance of the main action.

Re the Plaintiffs’ Motion for Summary Judgment

[17] The partial indemnity bill of costs of the defendants for the plaintiffs’ motion for summary judgment totalled $37,338.16.

[18] I turn now to the factors to be considered under rule 57.

[19] Counsel for the defendants, Mr. Miller, claims 43 years at the bar and that he is highly experienced in municipal law and public highway cases. Given that experience, his hourly rate of $400.00 is not out of the ordinary. Nor are the hours he spent reviewing and responding to the plaintiffs’ motion materials and preparing for and attending at the motion for summary judgment. Counsel for the plaintiffs, Mr. Wyjad, charges the same rate. The preparation time claimed by both counsel is not so different as to bring Mr. Miller’s into question.

[20] It is difficult to ascertain the amount of costs that an unsuccessful party would reasonably expect to pay but, given the volume of material produced by the plaintiffs, the number of issues raised on their behalf, and the number of days of argument, they certainly could expect a substantial bill of costs. Again, the bills of costs submitted by each party for the motion are similar enough that the defendants’ costs should be within the reasonable expectation of the plaintiffs.

[21] With respect to Rule 57.01(1)(c), regarding the complexity of the proceeding, the factual situation is complicated and time consuming to ascertain. The plaintiffs’ motion included a record containing 48 exhibits. The plaintiffs filed a factum consisting of 31 pages in support of their motion. The defendants relied on 2 affidavits in response to the motion which affidavits set out the background to the issues raised and responded to the historical evidence submitted by the plaintiffs in support of their motion. The affidavit of Donna Blanchard filed by the plaintiffs contained 14 additional affidavits as exhibits. The contradictions in the two sides’ affidavits could not be reconciled. The defendants’ solicitor also prepared a detailed and thorough factum responding to the legal issues raised by the plaintiffs.

[22] The plaintiffs filed an amended motion record containing new affidavits they intended to rely on at the motion after service of the responding affidavits by the defendants. The plaintiffs also served a second factum on the public highway issue.

[23] Several distinct arguments were before the court at the hearing of the motion:

a. Whether the Municipal Act applied in the unincorporated Township of Laurier;

b. Whether Trussler Road was a colonization road;

c. Whether statute labour had been usually performed on Trussler Road;

d. Whether there had been dedication and acceptance of Trussler Road as a public road;

e. Whether the Crown should have been a party to the litigation;

f. Whether the entire action should be dismissed, not just the motion for summary judgment; and

g. Whether the road could be on a public easement over private property.

These legal arguments were complex. Four and one half day of arguments were required.

[24] Regarding the importance of the issues, the case was certainly important to the plaintiffs who were trying to obtain or preserve access by road to their rural property. At the same time, it was important to the defendants whose lands would have been affected had it been found that there was a public road over them.

[25] As for the conduct of the parties that tended to shorten or to lengthen unnecessarily the duration of the proceeding, the plaintiffs took a circuitous route in attempting to have the court make certain findings, when a direct approach would have been more economical and less likely to produce an erroneous decision. For example, the arguments in favour of there being a public road were full of suppositions, suggested inferences and uncertainties. Surely, one would think, had government records been sought on whether the road in question was a colonization road or whether statute labour had been performed on it, the answers would have been made more directly available. Furthermore, if the province had been made a party as was suggested, but which the plaintiffs refused to do, not only would such records likely have become available, but there would have been much more certainty about the implications of the road being declared public. Instead, the court was faced with protracted arguments based on unsatisfactory evidence that had to be carefully examined. For example, a Crown patent was filed in support of the plaintiffs’ argument that the road in question was a public road because it had been a colonization road, because the patent mentioned a colonization road over the property that it dealt with. Close reading of the metes and bounds description of the property in the document, however, indicated that the colonization road’s route was not over the road in question. Consequently, the document contradicted the argument it was filed in support of. This point also could be considered under the Rule 57 factor involving a party’s denial of or refusal to admit anything that should have been admitted.

[26] The motion was confirmed by counsel to require a full day of argument. It took four and one half days, with about three of those being for the plaintiff. A number of the plaintiffs’ documents were of such poor reproduction quality as to be illegible or nearly so, requiring time to be taken to access better copies. Such matters should be attended to before, not during, a hearing as part of readying a matter for court.

Costs Sought for Balance of Action (Public Highway Issue)

[27] As noted above, the plaintiffs’ claim in the main action sought relief under two heads of relief, one under the Road Access Act and a claim that the road in question was a public highway. The defendants’ motion for summary judgment on the first, whether the road was an access or common road under the Road Access Act, was heard and decided against the plaintiffs by Mr. Justice Gordon in 2017. Mr. Justice Gordon also dismissed the plaintiffs’ claim under the Road Access Act in the main action.

[28] He awarded costs to the defendants for that motion for summary judgment and, in the amount of $13,451.80 inclusive of HST and disbursements, for the part of the main action that was relevant to the Road Access Act.

[29] As the remaining part of the plaintiffs’ claim in the main action has now been dismissed, the defendants seek an order that the plaintiffs pay them partial indemnity costs for that half of the action which relates to the public highway issue, in the amount of $11,524.82, as set out in the partial indemnity bill of costs for the balance of the action.

[30] Relevant factors in determining costs were covered above in dealing with the costs of the motion and will not be revisited here as similar considerations apply. In addition, the defendants submit that the plaintiffs initially commenced their claim against the defendants by application which then had to be converted to an action. The defendants filed responding affidavits to the application and then later had to file pleadings after the application was converted to an action.

[31] Indeed, the documents in this matter were substantial in volume and time consuming to review.

Conclusion

[32] In his decision on costs in the other aspects of this case, RSJ Gordon stated:

An unsuccessful party may generally expect to pay the partial indemnity costs of the successful party. Insofar as fees are concerned, a partial indemnity award will generally result in a costs award of 60% of actual fees. In the case before me, the actual fee is $400 per hour and yet partial indemnity costs are claimed at the rate of $325 per hour or 81.2% of the actual fee. I am not satisfied that the circumstances of this case warrant the indemnification of fees at this increased level. Accordingly, I have reduced the allowed hourly rate from $325 to $240 per hour. I otherwise have no quarrel with the Bill of Costs submitted by counsel for the Defendants.

I agree and I will take the same approach and adjust the defendants’ counsel’s fees accordingly.

[33] Having regard to all of the above, I conclude that an award of costs in the amount of $27,840.00, inclusive of HST and disbursements is appropriate for the motion for summary judgment and is payable by the plaintiffs to the defendants forthwith. I further conclude that an award of costs in the amount of $8,700.00 inclusive of HST and disbursements attributable to the balance of the main action is appropriate, and is also payable by the plaintiffs to the defendants forthwith.

Justice J. A. S. Wilcox

Released: August 17, 2018

[1] Fong v. Chan, 1999 ONCA 2052, 46 O.R. (3d) 330

[2] Boucher v. Public Accountant’s Counsel (Ontario), 2004 ONCA 14579, [2004] O.J. No. 2634