COURT FILE NO.: 087/13
DATE: 20221003
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
John Owen Tyler and Kimberly Diane Tyler
Plaintiffs
– and –
George Eadie and George Eadie as executor of the Estate of Susan Eadie
Defendants
J. Mastorakos and S. Clements, for the Plaintiffs
G. Roberts and S. Micoo, for the Defendants
AND BETWEEN:
George Eadie
Plaintiff by Counterclaim
– and –
John Owen Tyler, Kimberly Diane Tyler and John Doe and Jane Doe, as executors of the Estate of Hazel Everett
Defendants by Counterclaim
G. Roberts and S. Micoo, for the Plaintiff by Counterclaim
J. Mastorakos and S. Clements, for the Defendants by Counterclaim,
HEARD: Submissions received in writing.
J.C. Corkery J.
COSTS ENDORSEMENT
[1] This matter was a property dispute between neighbours over the end point of the common boundary between their properties, as well as the location of the defendants’ dock. After a twelve-day trial, I determined that the common boundary terminated at the water’s edge of Balsam Lake, that the defendants had established adverse possession of the land under their dock and that the location of the dock affected the plaintiff’s riparian rights.
[2] I have received and reviewed the parties’ written submissions as to costs.
Overview
[3] The Eadie dock is located near the common boundary of the parties’ properties. When extended, the common boundary line diagonally crosses the dock. Where that common boundary terminates determines whether any under the dock is on the Tyler property. In this case, applying Walker v. Ontario (Attorney General), 1970 CanLII 953 (ON SC), [1971] 1 O.R. 151 (H.C.J.), aff'd 1972 CanLII 31 (ON CA), [1972] 2 O.R. 558 (C.A.), aff'd 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78, I found that the common boundary ends at the water’s edge.
[4] The water’s edge on Balsam Lake is ambulatory. It moves in and out as the lake level rises and falls day to day and seasonally. The lake level is controlled by the Trent Severn Waterway. When the lake level is low, as it appears on the survey prepared by Dearden and Stanton Limited on April 13, 2013, the common boundary extends across the dock to the water’s edge, incorporating a triangular shaped piece of the dock as part of the Tyler property. However, at higher lake levels, the common boundary meets the water’s edge before intersecting with the dock and none of the dock is on the Tyler property.
[5] The parties agreed that the lands under the Eadie dock remain in the Land Registry System. I found that since November 7, 2002 (when the Eadies purchased their property), their possession of the land under the dock was open, notorious, peaceful, adverse, exclusive, actual and continuous. They had the intention of excluding the Tylers and others from possession, and effectively excluded the true owner from possession. The Eadies established their title to the land under the dock by adverse possession.
[6] After my reasons were released, the parties resolved the issue of their riparian rights around the dock.
The Law
[7] The court’s discretion to award costs is found in s. 131 of the Courts of Justice Act and is to be exercised in accordance with the factors set out in Rule 57.01 of the Rules of Civil Procedure. The court must consider what is “fair and reasonable” 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 CanLII 14579 (ON CA), at paras 26, 37.
[8] Rule 57.01 identifies the following factors:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(iii) any other matter relevant to the question of costs.
[9] The overarching principles to be observed in the exercise of the court’s discretion to fix costs are fairness, proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 143 O.R. (3d) 519; Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA); and Moon v. Sher (2004), 2004 CanLII 39005 (ON CA).
[10] A successful party is usually entitled to receive its costs on a partial indemnity basis: Bell Canada v. Olympia & York Developments Limited et. al. (1994) 1994 CanLII 239 (ON CA). This general rule serves several purposes, including: (1) to indemnify successful litigants; (2) to facilitate access to justice; (3) to discourage frivolous claims and defences; (4) to discourage the sanctioning of inappropriate behaviour by litigants in their conduct of the proceedings; and (5) to encourage settlements: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 7238,, [2010] CarswellOnt 9939.
Positions of the Parties
[11] The plaintiffs submit that they were almost entirely successful against the defendants. They a) proved that they own all of their waterfront land up to the water’s edge, b) confirmed their entitlement to riparian rights, and c) and obtained an order preventing the defendants from blocking egress out into Balsam Lake from their waterfront. The defendants were successful on their claim for adverse possession, but wasted court time pursuing meritless claims: for damages, seeking to restrain the plaintiff’s from using their own dock and to engage other parties.
[12] The plaintiffs’ partial indemnity costs total $150,563.98, including of legal fees of $121,329.23 and disbursements of $29,234.75, both including HST. In consideration of the claims of the parties at trial, the complexity of the issues, the importance to both parties of the outcomes, the findings in favour of the plaintiffs, the time wasted by the defendants at trial, and the minor success of the defendants, the plaintiffs ask the court to fix costs in the amount of $125,000.00 inclusive.
[13] The defendant, Mr. Eadie, also claims success at trial. The court recognized his claim for adverse possession. Further, he submits that the plaintiffs were not wholly successful in their claim to have the common boundary recognized as terminating some 153 feet from its point of origin, as described in the Dearden and Stanton survey measured on April 13, 2013, at a low water level.
[14] Pursuant to Rule 49, Mr. Eadie made an offer to settle this matter on February 21, 2018, on the following terms:
the Plaintiffs will pay the Defendant George Eadie’s costs on a partial indemnity basis to the date of this offer to settle, and on a substantial indemnity basis thereafter, to be agreed or assessed;
the Plaintiffs will pay the Defendant George Eadie’s out-of-pocket costs to repair the damage that the Plaintiffs caused to his dock;
upon payment of the said costs, the Plaintiffs will take out an order (with prejudice) dismissing this action and the counterclaim without costs; and
[15] The defendants’ partial indemnity costs totaling $248,861.38, $206,655.50 for legal fees and $42,205.88 for disbursements, both inclusive of HST. Mr. Eadie claims success better than the terms of his offer to settle and seeks his costs on a partial indemnity scale up to date of the offer and substantial indemnity thereafter.
Discussion
[16] The plaintiffs were successful at trial with respect to the determination of the terminus of the common boundary. In their submissions at the conclusion of the trial, the Tylers asked the court to recognize the water’s edge as the termination point during the navigation season. My decision recognizes the water’s edge as the terminus of the common boundary, at all times. This finding is in the plaintiffs’ favour. This outcome is better than the dismissal offered by Mr. Eadie.
[17] Mr. Eadie was successful in his claim for adverse possession. His title to the land under his dock is unaffected by common boundary terminus being the water’s edge.
[18] The issue of the parties’ riparian rights was resolved by way of a consent amendment to paragraph 124 of my decision. I regard this as a neutral factor in determining costs.
[19] In my view, having regard to the overall success, neither party has been more successful than the other. The issues of the terminus of the common boundary and the ownership of the land under the dock were interrelated and both issues needed to be determined before the issue of riparian rights could be determined or resolved.
[20] Both issues were of equal importance and significance. Both issues required determination to resolve the title to the properties and to resolve the longstanding dispute surrounding the dock.
[21] Mr. Eadie was not more successful than his offer to settle. A dismissal, as he proposed, would have left the termination point of the common boundary unresolved.
[22] The issues were complex. Experienced experts disagreed. A twelve-day trial was necessary, and the trial was not lengthened unnecessarily by either side. No step in the proceeding was improper, vexatious or unnecessary. Neither side acted unreasonably, refusing to admit anything that should have been admitted.
[23] Given the equally divided success no costs are ordered. Each side shall bear their own costs
J.C. Corkery J.
Released: October 3, 2022
COURT FILE NO.: 087/13
DATE: 20220930
BETWEEN:
John Owen Tyler and Kimberly Diane Tyler
Plaintiffs
– and –
George Eadie and George Eadie as executor of the Estate of Susan Eadie
Defendants
J. Mastorakos and S. Clements, for the Plaintiffs
AND BETWEEN:
George Eadie
Plaintiff by Counterclaim
– and –
John Owen Tyler, Kimberly Diane Tyler and John Doe and Jane Doe, as executors of the Estate of Hazel Everett
Defendants by Counterclaim
G. Roberts and S. Micoo, for the Plaintiff by Counterclaim
J. Mastorakos and S. Clements, for the Defendants by Counterclaim,
COSTS ENDORSEMENT
J.C. Corkery, J.
Released: October 3, 2022