Court File and Parties

COURT FILE NO.: CV-19-00000037-0000 DATE: 20210311 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dawn Fisher and Kelly Fisher, Applicants AND: Jamil Antonio Saade, Respondent

BEFORE: Madam Justice Deborah Swartz

COUNSEL: Kurt Pearson, for the Applicants Michael Swindley, for the Respondent

HEARD: in writing

Costs Endorsement

[1] This is the decision on costs in this Application, which was heard on February 12, 2021. In my decision, I found that there was mixed success between the parties. Each was successful in one way or another. On balance however, I find that the Applicants were the more successful parties and are entitled to a costs award.

[2] The Respondent asserts that as he was not foreclosed from renting his property by the court, he was the more successful party. The court was not asked however, to order that he be prevented from renting his property. He was successful in confirming that he and his guests and invitees including tenants, may use the right of way.

[3] The Applicants were successful in all other areas. The dock was ordered to be removed. Nothing new can be installed by the Respondent on or attached to the right of way. The camera is to be removed and the others redirected. The right of way is to be utilized for pedestrian use only, in going to and from the water. The Respondent was directed to ensure that his use of the right of way and anyone he invites to use the right of way, is reasonable and solely for the purpose of getting to and from the water. The Respondent agreed in his material to remove any items that are on the property line. He was cautioned about future trespass and interference with the Applicant’s property. Damages were not awarded.

[4] The Applicants ask for an award of costs of $49,024.58. This is a request for partial indemnification. Counsel’s total docketed fees were $75,422.42. Fees actually billed to the clients were $72,888.93. The total hours accumulated were just over 250.

[5] The Respondent’s total fees were approximately $17,936.00. The Respondent asks for costs of $9,326.72. The total hours accumulated were 84. He asserts in the alternative that there should be no order for costs at all on the basis of mixed success.

[6] The Respondent asserts that 80% of the focus in this case was on whether his tenants could make use of the right of way and as he was successful on this point that he should be awarded 80% of his fees on a partial indemnity basis.

[7] The Respondent’s description of the issues before the court, in this limited manner, is emblematic of the position of the Respondent in the litigation and of the nature of the dispute between these parties. For the Respondent, the key point was that he be able to continue having his tenants use the right of way. This ignores what the court viewed as the more complicated and necessary determination of what exactly this “use of the right of way” meant and whether the Respondent and his guests have done so reasonably.

[8] The court does not accept the Respondent’s math or description of the issues in this case as adequate. It may be that for the Respondent, this was the key issue. For the Applicants however, and for this court, this was a much more involved set of problems and conduct. The court found clearly that the Respondent had taken unreasonable steps in the course of using the right of way (cameras, dock, interference and trespass) and failed to ensure that his guests utilized the right of way in a reasonable fashion. He was ordered to remedy these things.

[9] It is insufficient for the Respondent to say simply “my tenants can continue to use the right of way so I was successful”. Had his tenants and the Respondent made use of the right of way in a reasonable fashion, there would have been no need for a court case.

[10] Had the Respondent and his tenants approached the right of way as such – as a right to use a path to and from the water - rather than an attempt to extend the use of the right of way into something akin to waterfront ownership, there would likely have been no calls to the police, no conflict, no lawyers, no trespass, no dock partying, no use of the Applicants’ other land area and no surveillance cameras.

[11] The responsibility for this court case and the conflict between these neighbours rests substantially with the Respondent and the court order following the hearing reflects this. The Applicants were the substantially successful parties. It is reasonable that costs be awarded in their favour and which reflect the nature and complexity of the case, the conduct of the parties, the remedies sought and obtained and the general nature of the case.

[12] Rule 57.01(1) of the Rules of Civil Procedure directs the court’s attention to consideration of relevant factors that assist in the exercise of the Court’s discretion under the Courts of Justice Act. This court has considered these factors and reflected that consideration in this analysis where the factors are relevant to this matter.

[13] There were no Offers to Settle the issues before the Court referred to by counsel in their costs submissions. There was reference by the Applicants to the number at which they proposed resolution of costs prior to preparing cost submissions, which was not accepted by the Respondent. The Respondent did not object to this reference in his submissions.

[14] The difference in the number of hours expended by each counsel on behalf of their clients is noteworthy. As noted by the Respondent, the total hours of the Applicants are just over 250 compared to those of Respondent’s counsel at 84. The gap in total fees incurred by each of the parties is also noted and flows partly from the use of senior counsel versus students, juniors and clerks.

[15] The Respondent knew or ought to have anticipated that costs, at least in the realm of what he himself had incurred, would be possible were costs to be ordered against him in this matter.

[16] In assessing the total bill of Applicants’ counsel, there are dockets for lead litigation counsel, junior counsel, consult work with additional senior counsel, articling students and law clerks. In the circumstances of this case, while fees incurred for lead, junior and modest consult counsel fees were reasonable, the court is unprepared to consider further fees for clerks and articling students.

[17] The disbursements are reasonable. The hourly rates for lead, junior and consult counsel are reasonable in the circumstances and given similar local rates and practices. Counsel for the Respondent takes no issue with the actual hourly rate in any event. Rather, he asserts that the total number of hours is excessive and that more work could have been done by junior counsel at a lower hourly rate.

[18] Following this line of argument, it is helpful to apply the general hourly rate that the Respondent himself was actually incurring over the 84 hours accumulated by his counsel during the file ($17,936 divided by 84 hours = $214 per hour), to the total hours of Applicants’ counsel less the clerk and student fees (215 multiplied by $214 = $46,010). The Applicants are asking for partial indemnity in an amount slightly more than this amount.

[19] As noted, the Respondent himself has incurred fees of just under $18,000. If one picks a mid point of total hours in order to assess reasonable costs, and as a comparator, one arrives at approximately 160 hours. If the general hourly rate utilized by his counsel’s office suggested by the Respondent as reasonable, is applied to this mid point, the total fees are in the range of $34,000.

[20] This does not mean that the determination of costs is a purely mathematical exercise. The caselaw is clear on this point. It is to be an assessment of what is reasonable and fair in the circumstances of each case, considering the factors set out in Rule 57 and as further addressed in the caselaw.

[21] In this case, it is difficult to understand the huge difference in the number of hours accumulated by each counsel’s office. This is made more difficult as the Bill of Costs from Applicants’ counsel does not provide a breakdown of the hourly dockets for each of the five people billing on the file, in order to understand who did what work on the file and to determine with more precision if the work was necessary and reasonable.

[22] In this case, it is reasonable to award partial indemnity fees based on substantial (but not complete) success by the Applicants.

[23] In examining the totality of this matter and considering the factors set out in Rule 57, and in the exercise of my discretion under the Courts of Justice Act, I find that it is fair and reasonable to order that the Respondent pay costs to the Applicants in the amount of $25,000 inclusive of HST and disbursements.

Swartz J. Date: March 11, 2021