Bellhouse v. Kaas
CITATION: 2020 ONSC 7788
COURT FILE NO.: 11704/17; 11857/17
DATE: 2020-12-14
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Susan Michelle Bellhouse, Applicant
AND: Henry Peter Kaas and Tara Leon Kaas, Respondents
BEFORE: Mr Justice Ramsay
COUNSEL: Duncan M. MacFarlane, QC for the Applicant; Michael Valente for the Respondents
ENDORSEMENT
[1] The Applicant Mrs Bellhouse asks for partial indemnity for costs in the neighbourhood of $42,000 for her successful application to recognize an easement and her successful defence of the Respondent’s counterapplication: Bellhouse v. Kaas, 2020 ONSC 7452. Costs of the motion of May 30, 2018 were fixed at $1,500 and reserved to me. The Respondents submit that costs of $10,000 in total would be more like it.
[2] The Respondents argue that they offered to settle on January 14, 2020 for about the same relief as the Applicant ended up being awarded. I do not accept this submission. The Applicant would have had to pay her own costs and agree that a fence could remain with an open gate across it. She would still be restricted in her use of the right of way. She is now within her rights to ask for removal of the entire fence.
[3] I also reject the argument that the Applicant has been obstinate. She attempted to settle the dispute even before lawyers were involved. The Respondents have resorted to self-help throughout. The behaviour of their counsel at the cross-examinations (not Mr Valente) was obnoxious. He pointed his finger at the Applicant and when asked to stop, made personal and demeaning comments to Mr MacFarlane. This did not add to the costs of the action, but it must have reduced the chances of a settlement.
[4] Counsel for the Respondent takes issue with the amount of the Applicant’s bill of costs but has not submitted his own.
[5] I think that it would reasonably have been contemplated that a party would spend $50,000 in legal fees for the applications. I award the Applicant $30,000 as partial recovery, plus $1,500 for the motion, on which she was also successful. The Respondents are ordered to pay the Applicant $31,500 in costs, all inclusive.
"Justice Ramsay"
J.A. Ramsay J.
Date: 2020-12-14