COURT FILE NO.: CV-19-625010
DATE: 2020/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
James M. Wortzman and Karey Anne Dhirani for the Plaintiff
David W. Levangie for the Defendant 2404099 Ontario Limited
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] The background to this costs decision is that Plaintiff, 1637063 Ontario Inc. operates as Markham Road Medical Centre. I shall refer to it as “the Medical Centre”. I shall refer to the Defendant, 2404099 Ontario Limited, as “JD Development”. There is a system of easements that cross JD Development’s property. Both the Medical Centre and JD Development submitted plans to the City of Markham to redevelop their properties.
[2] In the site plan of the Medical Centre, the easement that crosses Parts 4 and 5 of the system of easements of which the Medical Centre is the dominant owner is shown as paved and this easement would provide vehicular access to the Medical Centre’s property and its parking lot and garage. However, in the site plan of JD Development, the easement that crosses Parts 4 and 5 of the system of easements is shown as partially sodded, and this maintenance of the easement would not provide vehicular access to the Medical Centre’s property and its parking.
[3] The Medical Centre brought an action and subsequently a motion seeking: (a) a declaration that it has an easement for vehicular and other traffic over Parts 4 and 5 of the system of easements; (b) a declaration that the Medical Centre has the ancillary right to pave, excavate, or use other means to use the easement over JD Development’s property for vehicular and other traffic; (c) an order that JD Development forthwith file an amended site plan with the City of Markham to depict the paving of Parts 4 and 5 of the system of easements; and (d) an Order restraining JD Development from removing the paving or in any other way interfering with the Medical Centre’s right to use the easement on JD Development’s property.
[4] The Medical Centre also joined the City of Markham to its action with JD Development about the rights of way and about the site plans for the adjoining projects. However, well into the proceeding, the Medical Centre abandoned its claim against the City of Markham without resolving the dispute with JD Development.
[5] The motion for injunctive relief was argued between the Medical Centre and JD Development. I granted a declaration that the easement over Parts 4 and 5 of JD Development’s property may be used for vehicular traffic. I declared that the Medical Centre has the right - at its own expense - to maintain the easement over Parts 4 and 5 of JD Development’s property and may pave the easement for vehicular traffic. I otherwise dismissed the Medical Centre’s motion.
[6] I did not order JD Development to forthwith file an amended site plan with the City of Markham to depict the paving of Parts 4 and 5 of the system of easements. I did not order that JD Development share in the costs of maintaining Parts 4 and 5 of the system of easements.[^1]
[7] The Medical Centre seeks costs of $89,304.86, all inclusive, on a partial indemnity basis. Of this sum $3,169.85 is for disbursements and $75,861.00 is for counsel fees.
[8] JD Development submits that each party ought to bear its own costs because there was divided success. While sometimes divided success in litigation means that the successful party was not as successful as his or her aspirations, more often and more typically, divided success in litigation means that both parties won something. In the immediate case, success was not genuinely bilateral; it was just less unilateral success; there was no divided success. JD Development was the loser, and in anticipation of the planning process ironing out the creases in the development plans, some of the relief that I did not grant was, practically speaking, unnecessary once the declaratory relief was granted.
[9] Thus, the normal rules with respect to the determination of costs should apply. In this regard, JD Development submits that the Medical Centre’s claim for costs is excessive, and it submits that JD Development should not be obliged to pay for the Medical Centre’s litigation with the City of Markham that was abandoned. JD Development submits that in contrast to the Medical Centre’s excessive claim, had it been successful, its claim would have been $26,639.68 all inclusive.
[10] In my opinion, there is traction to JD Development’s argument, and in my opinion the appropriate award, an award that would be within the reasonable expectations of the unsuccessful party, is $45,000, all inclusive.
[11] In reducing the award, I have not given any weight to JD Development’s argument that the award should be reduced as far as to zero because of rudeness and racially offensive comments made during the course of the litigation or because of the intransigence and bullying that marked the efforts to settle the dispute. The court does not condone this conduct, but this costs award is not the occasion to teach manners.
Perell, J.
Released: February 3, 2020
COURT FILE NO.: CV-19-625010
DATE: 2020/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
1637063 ONTARIO INC. o/a MARKHAM ROAD MEDICAL CENTRE
Plaintiff
- and -
THE CORPORATION OF THE CITY OF MARKHAM and 2404099 ONTARIO LIMITED o/a JD DEVELOPMENT GROUP
Defendants
REASONS FOR DECISION - COSTS
PERELL J.
Released: February 3, 2020
[^1]: 1637063 Ontario Inc. v. 2404099 Ontario Ltd., 2020 ONSC 7511.