Court File No.: 7015/18 Date: 2020 04 22 Superior Court of Justice - Ontario
Re: The Corporation of the Town of Oakville and Oakville Hydro Electricity Distribution Inc., Applicants And: Michael Arthur Sullivan and Margaret De Pede, Respondents
Before: Conlan J.
Counsel: Scott Hamilton, Counsel for the Applicants Albert G. Formosa and Lia Boritz, Counsel for the Respondents
Heard: In Writing
Endorsement on Costs
I. Introduction
[1] The Applicants, the Corporation of the Town of Oakville (“Town”) and Oakville Hydro Electricity Distribution Inc. (“Hydro”), applied to the Court for (i) a declaration that a pool and surrounding deck and other elements (“Pool Amenities”) installed by the Respondents, Michael Arthur Sullivan and Margaret Di Pede (“Respondents”), at their property in Oakville encroached upon a Hydro easement, (ii) an Order compelling the Respondents to remove the Pool Amenities, and (iii) an Order that the Respondents remediate any resulting damage caused by the Pool Amenities.
[2] The Town and Hydro put forward two distinct bases for the relief sought – (i) that the Respondents had contravened the express terms of the easement and (ii) that the Respondents had substantially interfered with the rights of the easement holders, the Town and Hydro.
[3] In its decision reported at 2020 ONSC 1419, this Court granted the Application on only the first basis described immediately above. The second basis was rejected by this Court. Further, the deadline for compliance by the Respondents was extended from the thirty days sought by the Applicants to June 1, 2020.
[4] Unable to resolve the issue of costs, written submissions have been filed by the parties.
[5] The Applicants seek costs on a partial indemnity scale in the total amount of $77,782.87. The Respondents do not seriously contest the Applicants’ entitlement to costs but submit that the quantum ought to be reduced to something in the range of $50,000.00, maximum, on account of the Applicants’ alleged unreasonable conduct in refusing to consent to multiple adjournments of the proceeding that were ultimately granted by the Court.
II. Decision
[6] The successful Applicants are presumed to be entitled to some costs, and there is nothing that presents itself here that would cause this Court to depart from that presumption. The only real issue is the appropriate quantum of costs, on a partial indemnity scale.
[7] Quantum of costs is discretionary. This Court should take into account the factors outlined in subrule 57.01(1) of the Rules of Civil Procedure, as well as the objectives of a costs award – to partially indemnify the successful litigant, and to encourage settlement, and to sanction inappropriate conduct by or on behalf of a litigant, and ultimately this Court must strive to award something that is fair, just, reasonable and proportionate in all of the circumstances presented.
[8] I agree with the Respondents that some reduction in the amount claimed by the Town and Hydro is warranted, for two reasons. First, though the Application was granted, at least half of the time expended during the hearing and in the proceeding up to that point dealt with the question of whether the Respondents had substantially interfered with the rights of the easement holders, and on that issue the Applicants were unsuccessful. Second, I agree with the Respondents that the Town and Hydro ought to have consented to the adjournment requests that were granted by the Court on May 27, 2019 and on August 14, 2019. There was no urgency to having the Application adjudicated upon, and the two adjournments identified were for clearly legitimate reasons (first to complete the evidentiary record, and later to allow Mr. Sullivan to recover from a heart attack that he was hospitalized and had surgery for in July 2019). Although costs were awarded by Chozik J. for the adjournment in August 2019, it appears that no costs were awarded for the adjournment in May 2019.
[9] I have considered the argument advanced on behalf of the Town and Hydro that the Respondents ought to have admitted from the outset that a hydro wire indeed existed underground within the easement, and that the failure to acknowledge that unnecessarily prolonged and complicated the proceeding. I think that is a good submission; I accept it. It does not change my view, however, for the reasons given, that $77,000.00 in costs is too rich.
[10] In the end, I think that the maximum costs award of $50,000.00 suggested by the Respondents is just. Accordingly, this Court orders that the Respondents shall pay to the Applicants costs in the total amount of $50,000.00.
(“Original signed by”) Conlan J. Date: April 22, 2020