Court File and Parties

COURT FILE NO.: CV-19-43 DATE: 2020/01/27 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: CLARA AGNES THOMPSON Applicant

–and–

TREVOR MERVIN LIDTKIE Respondent

BEFORE: Justice A. Doyle

COUNSEL: Timothy J. Girard, Counsel for the Applicant Self-represented with submissions from Heather Phanenhour

HEARD: In writing

Costs Decision

[1] On November 28, 2019, the Court granted the application which permitted the Applicant to close the access road on her property, subject to the following:

i) The Respondent may use the access road for the limited purpose of accessing his property, but shall not interfere with the use and enjoyment of the property of the Applicant and her occupants;

ii) The enforcement of this road closure judgment is suspended until December 31, 2020 to the extent that the Applicant shall not close or block the access road and thereby prevent the use of the access road by the Respondent for the limited purpose of providing vehicular access to and from the Respondent’s property.

iii) Either party is at liberty to request from the Court a variation or termination of the period of suspension set out above pursuant to r. 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), and/or s. 3(2) of the Road Access Act, R.S.O. 1990, c. R.34, and shall do so by a motion which sets out the relief sought, the reasons, and the evidence relied upon.

[2] If the parties were unable to agree on the issues of costs, they were to provide their written submissions.

[3] After considering the parties’ submissions, various attachments and the Rules, the Court awards the Applicant costs in the amount of $7,500.

Applicant’s Position

[4] The Applicant submits that, as the successful party, she is entitled to costs on a substantial indemnity basis as:

• The Respondent had many opportunities to agree to the closure of the access road within a reasonable period of time; letters requesting a resolution date from August 21, 2017 to July 13, 2018, i.e. for almost a year. The Respondent would not agree to a timetable.
• The Respondent chose to live there when the property was zoned only for a sugar shack with basic accommodation; and
• The Respondent was unwilling to construct a road despite the fact that he had authority to build a road allowance from the municipality.

[5] The Applicant’s bill of costs is in the format of a lawyer’s account to a client and indicates all the time spent on the file by her counsel who is a sole practitioner.

Respondent’s Position

[6] The Respondent is not seeking costs. He indicates that he tried to settle with the Applicant and attached letters to his submissions where he proposed offers to invest in a new driveway. He alleges that the Applicant is motivated to cause financial hardship to the Respondent, and that she was aware that when she bought the property that it was subject to this access road. This access road has been in use for over 60 years.

[7] In addition, he questions some of the time dockets in the bill of costs which include excessive time to write an email to his client, e.g. an hour or 10.25 hours to prepare an affidavit. There was also time (13 hours) spent on the zoning of the Respondent’s property that was not relevant to the application.

[8] He submits that he tried on many occasions to settle but the creation of a new road was going to be costly given the terrain; and the Applicant knew when she bought the property that it was subject to the public using the access road to gain access to the Respondent’s property.

Legal Principles

[9] The costs of a proceeding are in the discretion of the Court (Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 131 (1) (“Courts of Justice Act”)). That discretion must be exercised on a principled basis (Davies v. Clarington Municipality, 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40). Fixing costs is not merely a mechanical exercise; the amount awarded should, considering all the circumstances, be fair and reasonable (Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)). In a proper case, costs may be awarded against a successful party (r. 57.01(2) of the Rules).

[10] The Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario articulated the principles that govern costs assessments. The Court must be fair and reasonable when exercising its discretion to award costs and the parties’ expectation concerning the amount of a costs award is a relevant factor to be considered.

[11] Rule 57.01(1) of the Rules contains a non-exhaustive checklist of factors that guide the Court in its reasoning when awarding costs in the exercise of its discretion under s. 131 of the Courts of Justice Act.

Analysis

[12] The Applicant was the successful party and is presumptively entitled to costs.

[13] Firstly, with respect to the various correspondence between the parties prior to the commencement of litigation, the Court notes the following:

• The Applicant’s letters were efforts to arrive at some reasonable timelines for the closure of the access road;
• In the letter from the Respondent’s lawyer dated May 22, 2018, he offered to undertake the creation of a new entrance and driveway by October 31, 2018 and to cease using the Applicant’s driveway by October 31, 2018 provided that the Applicant allowed him to use the road access in the meantime; and
• However, the Applicant notes that this offer of May 22, 2018 was withdrawn in a subsequent letter dated June 26, 2018 from the Respondent’s previous counsel as he stated that the public cannot be excluded from the access road and there was a “physical difficulty of locating a driveway farther to the west”.

[14] The Court finds that both parties did make efforts to resolve the matter but the withdrawal of the last offer by the Respondent unfortunately resulted in litigation. His position that the access road should always remain open led to the litigation.

[15] The issue was of utmost important to both parties: for the Applicant to obtain an order to close public access to a road on her property and for the Respondent who required access to his property. I do not find that the Applicant was attempting to cause financial hardship to the Respondent but rather asserting her rights and limiting her liabilities on the use of her property.

[16] The issues were not overly complex, but the case does deal the intricate law of various easements. The law of easements and its application to these set of facts do require some in-depth analysis by the parties.

[17] Regarding the quantum of costs, the Court notes the following:

• The Applicant’s counsel’s hourly rate of $200 per hour is a reasonable rate given that he has been a member of the Bar for 12 years;
• The total time of 76.7 hours on the file seems high but not excessive;
• The expenditure of 8 hours on research on easements and 7.5 hours to prepare a factum is not unreasonable; and
• There were two court appearances. The first court hearing was adjourned on the request of the Respondent to permit him to obtain his survey. This appearance added costs to the Applicant.

[18] In reviewing a claim for costs, I need not undertake a line by line analysis of the hours claimed, nor should I second guess the amount claimed unless it is clearly excessive or overreaching. I must consider what is reasonable in the circumstances taking into account all of the relevant factors and award costs in a global fashion.

[19] I have considered the principle of proportionality as expressed in the interpretive provisions of r. 1.04(1.1):

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[20] In the normal course, costs are awarded to a successful party on a partial indemnity scale.

[21] I find that, having considered the above, it is fair and reasonable for the Applicant to be awarded costs on a partial indemnity basis in the amount of $7,500.

Justice A. Doyle Date: January 27, 2020