Court File and Parties

COURT FILE NO.: 57930/18 DATE: 2019/01/08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Richard, Applicant – and – The Corporation of the City of Niagara Falls, Respondent

COUNSEL: C. McGoogan and C. Du Vernet, for the Applicant M. Bordin, for the Respondent

BEFORE: The Honourable Justice J. R. Henderson

COSTS ENDORSEMENT

[1] The respondent (“the City”) successfully defended this claim by the applicant for a declaration that the applicant is the owner, by adverse possession, of the Disputed Land. The City now requests its costs of the application.

[2] The general rule is that a successful party is entitled to its costs on a partial indemnity basis. See the decision in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at para. 34. In my view there is no reason to deviate from this rule in the present case.

[3] I reject the applicant’s submission that this application was unique or novel. I accept that the law with respect to adverse possession claims regarding public land has evolved; but the concepts have been raised and discussed in several previous court cases, as set out in my written reasons in this case.

[4] Regarding quantum, I find that the application was important to both parties. I also find that the importance of this case was heightened by the fact that the application dealt with ownership of public land. Moreover, given the historical nature of the evidence, I accept that the application was moderately complex.

[5] In any costs decision the goal is to fix an amount that is fair and reasonable for the unsuccessful party to pay to the successful party in the circumstances. The amount should be within the reasonable expectations of the parties. See the decision in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (ONCA) at paras. 24-26 and para. 38.

[6] This proceeding involved the exchange of an applicant record, a responding record, and a reply record; supplementary material; cross-examinations; a factum and book of authorities from each party; and approximately a half day of oral argument. The application was presented in a respectful and efficient manner.

[7] Under these circumstances, having considered the bill of costs of the City, and the reasonable expectations of the parties, I assess partial indemnity costs in the amount of $15,000.00, plus HST on fees of $1,950.00, plus disbursements of $1,189.48 (inclusive of HST), for a total of $18,139.48.

[8] Accordingly, it is ordered that the applicant pay to the City its costs fixed at $18,139.48, payable within 30 days.

J. R. Henderson J. Released: January 8, 2019