Court File and Parties

COURT FILE NO.: CV-18-591363 COURT FILE NO.: CV-18-605332 DATE: 2020/02/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EDWIN LE MARCHANT and LAURA FISET Applicants - and - FELA GRUNWALD Respondent APPLICATION under Rule 14.05(3) (d), (e) and (h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, section 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and sections 159 and 160 of the Land Titles Act, R.S.O. 1990, c. L.5

AND BETWEEN:

FELA GRUNWALD Applicant - and - EDWIN LE MARCHANT and LAURA FISET Respondents

Counsel: Michael Farace for the Applicants Gabrielle K. Kramer and Julie Lesage for the Respondent Gabrielle K. Kramer and Julie Lesage for the Applicant Michael Farace for the Respondents

IN THE MATTER OF AN APPLICATION under Rule 14.05(3) (d), (e) and (h) of the Rules of Civil Procedure

HEARD: In writing

PERELL, J.

REASONS FOR DECISION - COSTS

[1] Fela Grunwald is the owner of 180 Wychwood Avenue, Toronto. Her next door neighbours are Edwin Le Marchant and Laura Fiset (the “Le Marchants”). They are the owners of 182 Wychwood Avenue. By way of an Application, the Le Marchants sought declarations that a Right-of-Way Agreement that granted reciprocal rights-of-way was void. In the alternative, the Le Marchants sought an Order that Ms. Grunwald remove all encroachments on the right-of-way that are located on her property. Ms. Grunwald brought her own Application. She sought rectification of the Right-of-Way Agreement and a declaration that she is entitled to use the right-of-way for vehicular access to the rear of her property. Moreover, she sought an Order that the Le Marchants remove encroachments that interfere with Ms. Grunwald’s use of the right-of-way for vehicular access. I granted Ms. Grunwald’s Application, and I dismissed the Le Marchants’ Application.

[2] Ms. Grunwald seeks costs on a substantial indemnity basis of $97,459.25, inclusive of legal fees of $79,553.25, disbursements of $6,749.67, and tax. Her actual fees incurred were $99,440.58. In the alternative, Mrs. Grunwald seeks costs on a partial indemnity basis of $80,603.86, inclusive of legal fees of $64,636.97 on the application, disbursements of $6,749.67, and tax.

[3] Ms. Grunwald attempts to justify her claim for substantial indemnity costs, in part, based on the alleged extreme weakness of the Le Marchants’ resistance to her Application and the alleged extreme weakness of their own Application. While it is true that the Le Marchants’ various arguments were without merit, they were entitled to their day in court, and the weakness of a party’s case is not conduct that deserved censure. The Le Marchants were unsuccessful and the normal rule that applies to the circumstances of the immediate case is that the unsuccessful party is liable to pay costs on a partial indemnity basis.

[4] Ms. Grunwald also attempts to justify her claim for substantial indemnity costs based on the Le Marchants’ obstructive use of the right-of-way pending the court’s decision. This conduct required additional attendances. The Le Marchants will have to pay the costs of these additional attendances, and it is not necessary or appropriate to make a punitive award.

[5] Further, Ms. Grunwald also attempts to justify her claim for substantial indemnity costs based on the lack of detail in Le Marchants’ materials which required Ms. Grunwald to file a large volume of materials to provide a complete and relevant record for the Court. Once again, this circumstance does not justify a punitive award.

[6] The failed settlement negotiations and the failed efforts to bring peace between the neighbours are not a reason for substantial indemnity costs, and I do not see how Rule 57 is applicable in the circumstances of the immediate case.

[7] Thus, the costs in the immediate case should be determined on a partial indemnity basis. On this basis, the Le Marchants submit that the appropriate award should be $43,035, all inclusive.

[8] In support of its submissions, the Le Marchants listed 11 items from Ms. Grunwald’s Bill of Costs for which they submitted that the hours were excessive or where more than one lawyer was engaged when it was submitted that one lawyer was all that was necessary.

[9] The court's discretion in awarding costs arises under the authority of s. 31(1) of the Courts of Justice Act, [1] and is to be exercised by a consideration of the factors in Rule 57.01(1) of the Rules of Civil Procedure. [2] These factors include the principle of indemnification, the reasonable expectations of the parties, the complexity of the proceeding, the importance of the proceeding, and the conduct of the parties in litigation.

[10] The traditional discretionary principles developed for costs awards are codified in Rule 57.01(1), which states:

Factors in Discretion

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

(iii) any other matter relevant to the question of costs.

[11] The most general rule about costs, not to be departed from without good reason, is that costs at a partial indemnity scale follow the event, which is to say that normally costs are ordered to be paid by the unsuccessful party to the successful party on a partial indemnity scale. [3]

[12] A critical controlling principle for the awarding of costs is that the sum awarded reflect the fair and reasonable expectations of the unsuccessful litigant. [4] The overriding principle in awarding costs is reasonableness. [5]

[13] The assessment of reasonableness is discretionary and very much dependent upon the circumstances of each case. Awarding costs is not a mechanical exercise of calculating hours and hourly rates, and in the circumstances of the immediate case, in my opinion, the appropriate award that is fair and within the reasonable expectations of the unsuccessful litigant is $66,000, all inclusive.

Perell, J.

Released: February 19, 2020

COURT FILE NO.: CV-18-591363 COURT FILE NO.: CV-18-605332 DATE: 2020/02/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EDWIN LE MARCHANT and LAURA FISET Applicants - and - FELA GRUNWALD Respondent AND BETWEEN: FELA GRUNWALD Applicant - and - EDWIN LE MARCHANT and LAURA FISET Respondents

REASONS FOR DECISION - COSTS

PERELL J.

Released: February 19, 2020

Footnotes

[1] R.S.O. 1990, c. C-43.

[2] R.R.O. 1990, Reg. 194.

[3] McCracken v. Canadian National Railway, 2012 ONSC 6838; Hague v. Liberty Mutual Insurance Co., 2005 ONSC 13782, [2005] O.J. No. 1660 (S.C.J.); Pike's Tent and Awning Ltd. v. Cormdale Genetics Inc. (1998), 27 C.P.C. (4th) 352 (Ont. Gen. Div.); Bell Canada v. Olympia & York Developments Ltd. (1994), 1994 ONCA 239, 17 O.R. (3d) 135 (C.A.).

[4] Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 ONCA 14579, 71 O.R. (3d) 291 at para. 24 (C.A.); Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 ONCA 9852, [2004] O.J. No. 2102 at para. 97 (C.A.); Zesta Engineering Ltd. v. Cloutier (2002), 2002 ONCA 25577, 21 C.C.E.L. (3d) 161 at para. 4 (Ont. C.A.); McGee v. London Life Insurance Co., [2008] O.J. No. 5312 at paras. 5-8 (S.C.J.); Caputo v. Imperial Tobacco Ltd. (2005), 2005 ONSC 63806, 74 O.R. (3d) 728 at paras. 23-25 (S.C.J.). Lee v. General Motors Co. of Canada, [2004] O.J. No. 2245 (S.C.J.).

[5] Davies v. Clarington (Municipality) (2009), 2009 ONCA 722, 100 O.R. (3d) 66 at para. 52 (C.A.).