Court File and Parties

COURT FILE NO.: 375/18

DATE: 2021/01/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David & Ursula Syrowik, Applicants AND: Stella Wheeler & Sheila Diaz, Respondents

BEFORE: George J.

COUNSEL: Analee Baroudi for the Applicants David Sanders for the Respondents

HEARD: In writing

DATE: January 29, 2021

Endorsement

[1] On December 18, 2021 I dismissed this Application. The Respondents now seek their costs on a full indemnity basis in the amount of $39,945.14 (inclusive of HST), and disbursements in the amount of $1200.24 (inclusive of HST).

[2] In support they rely on my comments in the Reasons for Decision and those of Hockin J. who, from the bench, on November 29, 2019, described this proceeding as a “luxury”. Indeed it is. The Respondents characterize this matter as, although trivial, ‘law intensive’ and take the position that some of the Applicants litigation decisions needlessly elevated costs (i.e. retaining an expert when such evidence was unnecessary). Para. (d) of their written cost submissions puts it this way:

It is respectfully submitted that one cannot find a case where the issues were less important: it was a few inches on a fence that blocked a few inches of the sunset for only a small part of the year. These were not important to the court, nor to the Respondents, nor to the municipality. They were important only to the Applicants…

[3] I couldn’t agree more. The tone, tenor, and substance of the Applicants posture in this litigation (as it relates to the Diaz fence) smacks of, as Respondent counsel put it, “self-centered obsessiveness”. Meaning, the Applicants must reimburse the Respondents for some of their costs. The question is, how much?

[4] The Applicants, remarkably in my view, seek their costs in the amount of $19,881.19 inclusive of HST and disbursements, focussing on the Respondent’s removal of the Wheeler fence (which did encroach on the Applicants property) only after the Application was commenced. Applicant counsel also devoted some time in her written submissions to, in my view, reiterate the positions she took at the hearing of the Application. For instance, she argues that the Respondents should recover nothing for the period beginning January 1, 2019 and ending December 18, 2020, writing this at para. 6:

[N]o costs should be awarded from January 1, 2019 until the date the decision was rendered on December 18, 2020. The basis for this request is that the Court in its discretion found that it could not exercise its discretion under s. 440 of the Municipal Act absent a finding of unreasonable conduct or bad faith on the part of the Municipality in deciding not to exercise its discretion.

[5] She goes on to indicate that no court has ever held as such and that, as a result, “it would be unfair to impose costs [against the Applicants] in these circumstances”.

[6] I am not certain that I entirely grasp this argument. Irrespective of any disagreement counsel and I might have on the interpretation, meaning and import of s. 440 (which is precisely why litigants argue points of law in the first place and ask courts to weigh in and decide), it cannot be reasonably disputed that the Applicants sought discretionary relief and that I chose not to exercise my discretion in their favour. While I respect Applicant counsel’s reading and interpretation of my reasons, it must be noted that what I clearly rejected was the idea that a ratepayer has a right to relief (as opposed to the independent right to seek what is in effect injunctive relief). Again, these are two very different things, and is an issue that was argued fully and which I resolved in favour of the Respondents.

[7] For me to have concluded as the Applicants wanted would have rendered irrelevant any consideration beyond the mere contravention of the by-law, which is clearly not the state of the law. Let me put it another way: In this case the municipality (the very entity that created the by-law in question), for articulable and cogent reasons, chose not to enforce it. That, in my view, in the particular circumstances of this case weighed against exercising my discretion to, in effect, stand in the municipality’s stead and take action. Meaning, there is no basis upon which to deny the Respondents their costs for this period, and there is certainly no basis upon which to award costs to the Applicants.

[8] Having said that, the Applicants did initially seek the removal of the Wheeler fence - which did encroach on their property – and the Respondents only removed it after this Application was commenced, which means a costs award should reflect this limited measure of success. I say limited as without question the predominant issue in this litigation, and the only one before me, was what to do with the Diaz fence.

[9] I find that, in all the circumstances and having regard to the factors set out in r. 57.01, a fair and reasonable amount for the Respondents to recover is $25,000.00 inclusive of HST and disbursements, which is what the Applicants are ordered to pay.

Date: January 29, 2021 Justice Jonathon C. George