Ontario Superior Court of Justice

Court File No.: CV-22-676509 Date: 2022-07-29

Re: Ashley Wiley and Dave Wiley, Applicants And: Genevieve Plank, Respondent

Before: FL Myers J

Counsel: Scott McGrath and Jessica DeFilippis, for the Applicants Bruce Bussin, for the Respondent

Read: July 29, 2022

Costs Endorsement

[1] In their Notice of Application, the applicants sought:

(a) An order that title to the Subject Land (as is hereinafter defined) vest in the names of the Applicants as tenants in common pursuant to section 100 of the Courts of Justice Act, RSO 1990, c C.43;

(b) In the alternative, a declaration that the Applicants have acquired possessory title to the Subject Land to exclusively use as part of their driveway for access, egress, parking and to service their property by way of a prescriptive easement, with 80 Indian Grove (as is hereinafter defined) being the servient tenement, and 86 Indian Grove (as is hereinafter defined) being the dominant tenement; [Emphasis added.]

[2] The applicants did not succeed fully in either request.

[3] The claim for title by adverse possession was stillborn and obviously so. The applicants never had a basis to suggest, let alone swear, that their predecessors in title had excluded the neighbours from accessing and using their strip of land. One might only have asked whether the side of Ms. Plank’s house had ever been washed, painted, or maintained during the 20- year review period to jettison the idea of claiming title by adverse possession.

[4] Seeking title to the strip abutting the neighbours’ house was a very aggressive tactic. It was utilized as a lever in settlement negotiations. It was withdrawn just days before the application and cannot be ignored.

[5] In the alternative, the applicants sought an easement to use the disputed land “exclusively”. This is also made clear in the offer to settle served by the applicants.

[6] I do not know whether the concept of an easement that excludes the owner from using her own land exists in Ontario as it may in the US. Paragraphs 19 and 20 of the Notice of Application make clear however that the easement sought was to declare that the disputed strip of land was “for the benefit and use of the Applicants' predecessors in title, and ultimately form part of 86 Indian Grove”.

[7] That is not the easement that the applicants succeeded in obtaining. The applicants’ entitlement to use the respondent’s strip of land is recognized but not on an exclusive basis. The strip of land is not owned by the respondent for the applicants’ benefit and use. Neither does it form part of the applicants’ land at 86 Indian Road. The respondents may allow others to use the strip of land (subject to the law on adversely affecting the applicants’ easement). There is no exclusivity to the applicants vis-à-vis the respondent or others.

[8] The applicants therefore did not achieve an order as advantageous to them as sought in their offer to settle.

[9] For her part, Ms. Plank offered to grant a one-foot easement that did not include parking. She too was trying to expand her rights.

[10] The outcome of the application and the obvious settlement was staring them all in the face. The applicants’ rights were defined by the use of the strip of land by the applicants and their predecessors in title for nearly half a century – no more and no less.

[11] The dispute arose because the respondent wants to renovate her house. Instead of talking to each other about their respective concerns and interests in respect of the renovation, they lawyered-up and misdirected their dispute into this proceeding.

[12] The applicants overreached and so did the respondent. The settlement exchanges make clear that neither was in a mood for negotiating to get to the actual use of the strip that they both should have known and understood. They just went down the road of fighting this fight, dragging into court their neighbours and former neighbours, for no real purpose.

[13] I do not view either side as successful. Neither got what they said they wanted. Both got the answer that was obvious and known to them had they looked at matters through an objective lens.

[14] The applicants cannot be said to have succeeded because the easement that they received was never on the table. It was not specifically sought nor refused. They never offered to accept that which they already had. They asked for more and the respondent responded by offering less.

[15] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice. Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[16] In my view, neither side achieved anything of value in this proceeding. I resolved an artificial dispute that was a proxy for a different dispute relating to the respondent’s renovation. It was possibly a muscle-flexing exercise; perhaps with a view to setting the tone for the next round of negotiations.

[17] Neighbours’ fights rarely end in court. Even if one side succeeds, the court proceeding is merely a battle in a larger war that continues until armistice is declared and peace is achieved. That cannot happen as long as each party insists on having his or her own way instead of finding a neighbourly way to communicate, actually listen, and compromise to try to accommodate both sides’ needs and wants.

[18] The applicants may have delayed the respondent’s zoning hearings by a few months. It was an expensive adjournment. Otherwise the parties are right where they were the day before the application was commenced. The applicants use the full driveway for all purposes and the respondent wants to renovate in a manner that seems to have caused some concerns for the applicants.

[19] In my view, both sides should absorb their own costs. It is not fair nor reasonable to require the respondent to pay the applicants for responding to their overreaching claims. Neither should the applicants pay the respondent for responding in kind. All are a bit wiser and a somewhat poorer and they still need to speak to each other about the real issues. With any luck they will find a way to avoid a lifetime of anger and anxiety whenever they see each other in the years and decades to come. Court proceedings cannot help with that either.

[20] No order as to costs.

FL Myers

Date: July 29, 2022