Ontario Superior Court of Justice

COURT FILE NO.: CV-16-560545 DATE: 2018-01-30

BETWEEN:

CAROL CARPENTER Applicant

– and –

CYNTHIA DOULL-MACDONALD Respondent

Counsel: Robert Kalanda for the Applicant Sarah W. Corman and Hilary Brown for the Respondent

HEARD: In writing

REASONS FOR DECISION - COSTS

PERELL, J.

[1] The Applicant, Carol Carpenter, brought an application for an order requiring Ms. Doull-MacDonald to remove a fence, which Ms. Carpenter submitted encroached on the prescriptive easement claimed by Ms. Carpenter. Ms. Carpenter also claimed damages alleging that Ms. Doull-MacDonald injured the mature oak tree on her property by removing a large limb that extended into Ms. Doull-MacDonald’s property. I dismissed Ms. Carpenter’s application.[^1]

[2] Ms. Doull-MacDonald seeks partial indemnity costs of $62,755.63, all inclusive. This sum was calculated at 60% of actual costs incurred up until an offer to settle, which was not accepted, and at 65% thereafter. The Bill of Costs reveals that the $62,755.63 includes a $3,000 discount to account for the transfer of the file from former counsel to current counsel.

[3] The unsuccessful Ms. Carpenter, who also made an unaccepted offer to settle, submits that her Bill of Costs, had she been successful, would have been approximately $18,000, all inclusive. She submits that Ms. Doull-MacDonald’s costs claim is dramatically higher than what would reasonably be expected in an application of this nature. Ms. Carpenter submits that the file was overworked by Ms. Doull-MacDonald’s lawyers, that the hourly rates are excessive, and that there were redundancies and inefficiencies in the number of lawyers engaged on the file, and by the circumstance that the file was transferred from one law firm to another.

[4] Ms. Carpenter makes numerous other attacks on the reasonableness of the costs claim, and both parties argue about the significance of the rival offers to settle and about the unreasonableness of the other as neighbours and as litigants.

[5] I, however, need not dwell on these sticks and stones because, in my opinion, the costs claim does exceed what the unsuccessful party could reasonably expect to have to pay for this particular litigation on a partial indemnity basis. It may be that Ms. Doull-MacDonald was well served by the work done by her two law firms, but the serves provided went beyond what her losing opponent could reasonable expect to pay.

[6] Having reviewed the Bill of Costs, I assess Ms. Doull-MacDonald’s costs at $40,000, all inclusive.

Perell, J.

Released: January 30, 2018

COURT FILE NO.: CV-16-560545 DATE: 20180130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CAROL CARPENTER Applicant

– and –

CYNTHIA DOULL-MACDONALD Respondent

REASONS FOR DECISION – COSTS

PERELL J.

Released: January 30, 2018

[^1]: See Carpenter v. Doull-MacDonald, 2017 ONSC 7560.