Court File and Parties

COURT FILE NO.: CV-20-72 DATE: 2022/09/12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ryan Kyle Browne and Nicole Sophora Browne, Plaintiffs AND Marie-Andree Flore Louise Meunier and Michael David Lucas, Defendants

BEFORE: The Honourable Justice C.T. Hackland

COUNSEL: David M. Adams, for the Plaintiffs Michael Adams, for the Defendants

HEARD: January 4 and 5, 2022, in Kingston via videoconference

Endorsement (Costs)

[1] This was the trial of an application in which neighbouring “riparian” (fronting on water) landowners sought to have the court determine whether the location of a 50 year old boathouse owned by the Defendants, interfered with the water access of the Plaintiffs. The court held that the boathouse did interfere with the Plaintiffs’ waterfront access but that the claim was statute barred pursuant to the Real Property Limitations Act, R.S.O. 1990, c. L.15. For the court’s reasons, see Browne et al. v. Meunier et al., 2022 ONSC 3118.

[2] The Defendants were successful in defending this claim and are entitled to their costs.

[3] The Plaintiffs submit that on a reasonable consideration of the Rule 57 criteria, an appropriate costs award to the successful Defendants is the sum of $15,000, all in. For their part, the Defendants submit that on a partial indemnity basis, they should be awarded costs of $21,272, but seek to rely on a Rule 49 offer to allow the Plaintiffs to withdraw their claim without costs, served shortly before trial, in which case the trial costs would be on a substantial indemnity scale for a total claim of $23,340. In my discretion, considering the Rule 49 offer was not in substance a compromise position, I find that the costs awarded to the successful Defendants should be on a partial indemnity scale throughout.

[4] I will observe that both parties are being reasonable in their costs submission to the court, establishing a fair suggested range of $15,000-$21,272. I complement both counsel and their clients on their efforts to handle this proceeding expeditiously. The claim started as an application and was ultimately converted to a trial. However, the matter proceeded very efficiently as a mini-trial, taking only 2 days, including arguments, and utilizing the affidavits filed as trial evidence and the cross-examination transcripts as discoveries. The viva voce evidence at trial was focused and to the point. Everything was done with courtesy, respect, and efficiency.

[5] This proceeding was of average complexity. The issues raised were very important to both parties as they reside on their respective properties and their water usage as well as access are central to their quality of life and in maintaining the value of their properties. In the court’s view, the issue of whether the common law principle of discoverability applies to the assertion of rights governed by Real Property Limitations Act was and remains an important question, in respect to which there was no definitive guidance at the appellate level. Further, the principles governing the doctrine of riparian rights are of considerable significance to riparian property owners.

[6] In the court’s view, a costs award to the Defendants that would be reflective of the Rule 57 criteria discussed above and would be proportional and within the reasonable expectation of the paying party, would be costs in the amount of $16,000 plus disbursements of $1,500 plus applicable HST on both amounts. Those sums are awarded herewith to the Defendants, to be paid by the Plaintiffs.

Justice Charles T. Hackland

Date: September 12, 2022

COURT FILE NO.: CV-20-72 DATE: 2022/09/12

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Ryan Kyle Browne and Nicole Sophora Browne, Plaintiffs AND Marie-Andree Flore Louise Meunier and Michael David Lucas, Defendants

COUNSEL: David M. Adams, for the Plaintiffs Michael Adams, for the Defendants

REASONS FOR JUDGEMENT

Justice Charles T. Hackland

Released: September 12, 2022