Court File and Parties

Barrie Court File No.: CV-17-0892 Date: 2019-01-15 Ontario Superior Court of Justice

Between: Colleen Conkie, Applicant – and – Susan Bugow, Respondent

Counsel: Michael Miller, for the Applicant Susan Bugow, Self-Represented

Heard: In Writing

Ruling on Costs

DE SA J.:

Ruling on Costs

1I decided in favour of the Applicant and granted the easement sought on August 20, 2018. The Applicant now seeks costs against Ms. Bugow on a partial indemnity basis in the amount of $24,312.01. The amount sought by the Applicant is based on the complexity of the issues raised, the importance of those issues to the parties, and the number of appearances required. The Applicant also had to obtain an interim injunction to prevent Ms. Bugow interfering with the Applicant’s access to her property in the interim.

2Given the level of experience of the counsel involved, and the complexity of the issues, counsel takes the position that the amount sought is more than reasonable.

3The Respondent, Ms. Bugow, takes the position that I should not award any costs. According to Ms. Bugow, the entire experience has cost her a great deal. Ms. Bugow maintains that the culvert on her property was necessary to drain the property. She paid $12,000 for the culvert and the Applicant had it filled causing damage to her property. She was not trying to interfere with the Applicant’s access. Ms. Bugow also takes the position that the Applicant’s conduct ultimately created issues and delays with events she had scheduled on her property.

4Ms. Bugow has ongoing health issues, and she maintains that she is not in a financial position to pay any costs.

Analysis

Analysis

5Costs awards under section 131 of the Courts of Justice Act, are highly discretionary.

6Rule 57.01 of the Rules of Civil Procedure sets out the factors to be considered including the amount of costs an unsuccessful party would expect to pay and the complexity of the proceeding. Assessing costs is not simply a matter of arithmetic, where dockets are tabulated. The overarching principle is that the court’s assessment should be fair and reasonable in light of all the circumstances.

7Section 57.01 provides as follows:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs. R.R.O. 1990, Reg. 194, r. 57.01 (1) ; O. Reg. 627/98, s. 6; O. Reg. 42/05, s. 4 (1); O. Reg. 575/07, s. 1.

8Given the complexity and time required to deal with the matter, I agree that the costs outlined by the Applicant are not unreasonable.

9However, in the circumstances, given Ms. Bugow’s financial situation, I will not order the full amount sought. Moreover, some of the expenses were necessary with a view to obtaining the easement. In the circumstances, I am prepared to order $12,000 in costs payable to the Applicant all inclusive.

10I thank counsel for his submissions.