Court File and Parties

COURT FILE NO.: CV-19-00000061-0000

DATE: 20210604

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN: Brian Forrester and Township of Drummond/North Elmsley and Peder Jensen Krogh and Maida Elizabeth Murray

BEFORE: Honourable Mr. Justice Martin James

COUNSEL: Mark A. Fendley, for the Applicant Roberto Ghignone, for the Respondent Township of Drummond/North Elmsley James D. Wilson, for the Respondents Peder Jensen Krogh and Maida Elizabeth Murray

HEARD: By written submissions

COSTS ENDORSEMENT

James J.

[1] The Respondents were successful in relation to an Application by the Applicant for the declaration for a public highway. The Township was represented separately from the individual Respondents. The Respondents shared similar but not identical interests. The Township was opposed to the possibility to acquiring a public highway that it didn’t want, and the individual Respondents would have suffered the bifurcation of a large section of their property if the Applicant had been successful.

[2] The Respondent Township submitted a bill of costs for $38,545.01 on a full recovery basis and $23,127 on a partial indemnity basis at the rate of 60% of their counsel’s actual rate.

[3] The Respondents Peder Jensen Krogh and Maida Elizabeth Murray submitted a bill of costs claiming $32,860.40 on a full indemnity basis and $20,616.98 on a partial indemnity basis at the rate of 60% of their counsel’s actual rate.

[4] The Township seeks recovery on a partial indemnity rate. The individual Respondents seek recovery on a full indemnity basis on the grounds that the Applicant attempted to deprive these Respondents of significant property rights.

[5] The Applicant says the costs claimed by the Respondents are inordinately high and for comparative purposes, indicates that the Applicant’s total costs were about $12,000, significantly less than the costs alleged to have been incurred by the Respondents.

[6] The Applicant says that there was considerable overlap in the positions taken by the Respondents and that awarding two full sets of costs would not be appropriate.

[7] The Applicant says that the decision has the effect of depressing the economic value of his land because it means that his access to his land is by water only. Although there was not a great deal of evidence on this point, I understand that when the Applicant acquired his property, the section on the north side of the Mississippi River was accessible by water only so I do not accept the contention that the value of the land became depressed as a result of the decision on this Application.

[8] The Applicant rightly points out that determining the costs payable by the unsuccessful party is not a mechanical exercise where the hours spent are tallied and a total derived from an arithmetical equation. Costs must be reasonable and proportionate and reflect what an unsuccessful party might reasonably have anticipated to pay.

[9] In my view, the Applicant should reasonably have expected to incur substantial costs exposure in the event his Application was unsuccessful. The case necessitated a careful examination of an extensive historical record, involved moderately complex legal issues and the issues were important to both sets of Respondents. The Respondents put a lot of effort into defending their positions and this is reflected in their costs claims which should not come as a surprise to the Applicant.

[10] There is no rule that multiple Respondents must be represented by one lawyer, even if they are not adverse in interest. Separately represented Respondents are entitled to separate costs awards, so long as each set of costs is reasonable and proportionate. The Township and the individual Respondents both filed extensive reply documentation that addressed their specific concerns.

[11] The issue of a historical public highway in this location was investigated previously by the Township and it is likely that the results of this investigation were known to the Applicant through his contact with Mr. Fairchild, to whom the Township sent correspondence on this issue in 1988. If this assumption is correct, it would have been reasonably apparent to the Applicant that there was a risk that the uncertainties identified by the Township in 1988 would re-surface if the matter was litigated.

[12] The Township utilized the services of both senior and junior counsel. The decision to have assistance from junior counsel depends on the nature and complexity of the proceeding and the amount at stake. Having junior counsel on a file is not an unusual situation but when time comes to assess the costs payable by an unsuccessful litigant who has not had an opportunity to provide input into the decision for two lawyers to work on a file, proportionality considerations become more prominent.

[13] In the result, I find that an appropriate amount for costs for the Respondent Township of Drummond/North Elmsley is $19,000 inclusive of fees and disbursements plus applicable HST.

[14] As for the individual Respondents, I am not persuaded that this is an appropriate case for substantial indemnity costs. Cost awards at the substantial indemnity rate of recovery tend to be reserved for situations where the costs consequences of a Rule 49 written offer to settle are engaged or where a party has engaged in discreditable conduct that warrants sanction by the court. Neither of those factors is present here. Accordingly, I find that an appropriate amount for the costs of these Respondents is $17,000 inclusive of fees and disbursements plus applicable HST.

[15] Both sets of costs are payable by the Applicant forthwith.

Mr. Justice Martin James

Date: June 4, 2021