Court File and Parties

Court File No.: CV-22-120 Date: 2023/04/28 Superior Court of Justice - Ontario

Re: Corporation of the Town of Renfrew, Applicant And Callum Scott and Zenaida Raboy, Respondents

Before: Justice A. Doyle

Counsel: J.F. Lalonde, Counsel for the Applicant Self-represented for the Respondents

Heard: March 1, 2023, at Pembroke and in writing.

Costs Endorsement

[1] On March 20, 2023, the court granted the applicant’s relief sought in the application including:

• a declaration that Renfrew is the owner of 200 Stewart Street and the Ready Street Road allowance;
• a declaration that the respondents are enjoined from trespassing on the subject properties;
• an order requiring the respondents to remove everything they placed on the subject properties;
• an order that the respondents restore the subject properties to their previous condition; and
• an order that the respondents remove the scaffolding on their property because it violates Zoning By-law 46-2010.

[2] If the parties were unable to agree on the issue of costs, they were to provide me costs submissions.

[3] Having now considered the costs submissions, bill of costs and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the court awards costs to the Applicant in the amount of $8,500 (inclusive of disbursements and HST).

Background

[4] The court found that Renfrew was the owner of 200 Stewart Street and the Ready Street municipal road allowance (“road allowance”).

[5] The respondents had encroached on the above 2 properties by having, among other things:

• Installed a rail fence through the property behind a stand of cedar trees;
• Stored wood, scrap metal, blue and black plastic barrels, rocks, stones, sand, and other materials;
• Built a treehouse by first cutting and removing several mature tree limbs from a tree;
• Installed fieldstone walkways;
• Placed decorative items such as old metal wheels; and
• Created a fenced area used as a garden and/or patio.

[6] On the road allowance, the respondents had:

• Built three dog houses and eight planter boxes; and
• Installed a rail fence.

[7] In addition, the scaffolding on the respondents’ property has been there since approximately May 2018 and no construction work is being conducted using this scaffolding.

[8] Photos show that the scaffolding is near a public sidewalk with ladders on each end and no barriers around it to prevent individuals from using it.

[9] On June 26, 2019, James McBain, the municipal law enforcement officer, wrote to the respondent, Callum Scott, advising him that the scaffolding was a threat to public safety and requesting that it be removed. The respondents called the By-law Complaint Line disputing the contents of the letter and refusing to take the scaffolding down.

[10] The town attempted to work with the respondents to remove the scaffolding, but the respondents rejected Renfrew’s offer of assistance.

[11] Renfrew requested that the respondents remove items from the road allowance and 200 Stewart. Renfrew provided deadlines and the respondents did not comply.

[12] The court also made the following findings:

• The respondents were trespassing on Renfrew’s properties;
• Renfrew had made numerous efforts to seek the respondents’ cooperation in the removal of their items on the described properties; and
• The respondents had not put forth a claim for adverse possession but even if they had, the facts and law in this case do not support such a finding;

[13] The court granted a declaration and other injunctive relief restricting trespass and requiring removal of the items and the scaffolding.

Applicant’s Position

[14] The applicant submits that as the successful party they are presumptively entitled to costs and requesting costs on a substantial basis in the amount of $22,933.06. It relies on Justice Healey’s decision in Southlake Regional Health Centre v. Beswick Group Properties Inc., 2014 ONSC 2326 at para. 5 where she stated:

Solicitor-client costs have been granted by this court as a mechanism for ensuring that re-litigation of previously settled claims is discouraged: Taske Technology v. Prairiefyre Software Inc. 2004 CarswellOnt 3838 (Ont. Master) at paras. 1 and 3; Ysselstein v. Tallon 1992 CarswellOnt 414 (Ont. C.J. (Gen. Div.)) at para. 71; Panasonic Canada Inc. v. Morrison 2003 CarswellOnt 1834 (Ont. S.C.J.) at para. 65. For the same reasoning set out in those cases, I find that an award on this scale should be made in this case. In addition to that overall unreasonable position taken by Southlake, it compounded that unreasonableness by asserting that Beswick was at fault for failing to produce annual costs reconciliations, and asserted that Beswick’s principal had engaged in serious misconduct which included deceit and misrepresentation. These are allegations of fraud-based behaviour. As set out in my reasons, such allegations were unreasonable and unsupportable on the evidence. The law supports an award of costs on a substantial indemnity scale where unfounded fraud-like allegations are made, as was the case here: A-C-H International Inc. v. Royal Bank (2005), 2005 CarswellOnt 2043 (Ont. C.A.) at para. 31; Susin v. Chapman (2004), 2004 13175 (ON CA), 2004 CarswellOnt 3055 (Ont. C.A.) at para. 12; 131843 Canada Inc. v. Double “R” (Toronto) Ltd. (1992), 1992 CarswellOnt 437 (Ont. Gen. Div.) at paras. 13-17. Additionally, at paragraphs 16.01 of the Lease, default for non-payment entitles Beswick to recovery of all expenses incurred in “remedying or attempting to remedy such default”, to be paid as Additional Rent.

[15] Alternatively, the applicant claims costs on a partial indemnity basis in the amount of $15,789.31.

[16] The respondents chose not to be represented and did so at their own risk. The amounts claimed are reasonable.

[17] The applicant prepared a detailed brief, addressed all possible issues in their factum and were ready to argue them in court by referring to evidence and legal concepts, including adverse possession and the interpretation of municipal by-laws and injunctive relief.

[18] Also, it would have been against public policy to allow the flagrant misuse of municipal property and allow violations of municipal by-law.

Respondents’ Position

[19] The respondents submit that they had to incur their own legal costs as the applicant had failed to provide them documentary evidence of ownership. They also spent hours researching the municipal by-laws and other laws.

[20] The respondents are requesting costs on a partial indemnity basis in the amount of $19,000 or on the substantial indemnity basis in the amount of $25,920 and disbursements of $664.98.

[21] They were unable to afford to retain counsel to represent them.

[22] In addition, the original application was filed in the wrong jurisdiction.

[23] The respondents also raised issues that the court has already determined.

General Legal Principles

[24] The costs of a proceeding are in the discretion of the court (s. 131(1) Courts of Justice Act, R.S.O. 1990, c. C.43). That discretion must be exercised on a principled basis (Davies v. Clarington Municipality, 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40). Fixing costs is not merely a mechanical exercise; the amount awarded should, considering all the circumstances, be fair and reasonable (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)). In a proper case, costs may be awarded against a successful party (r. 57.01(2) of the Rules).

[25] As stated in Boucher, the court must be fair and reasonable when exercising its discretion to award costs and the parties’ expectation concerning the amount of a costs award is a relevant factor to be considered.

[26] Rule 57.01(1) of the Rules contains a non-exhaustive checklist of factors that guide the court in its reasoning when awarding costs in the exercise of its discretion under s. 131 of the Courts of Justice Act.

Discussion

[27] Renfrew is presumptively entitled to costs.

[28] As stated by the Ontario Court of Appeal in Laczko v. Alexander, 2012 ONCA 872, partial indemnity costs are generally awarded. At para. 2, Justice Weiler stated “costs should be awarded on a partial indemnity basis unless justice can only be done by a complete or substantial indemnification: see Foulis v. Robinson (1978), 1978 1307 (ON CA), 21 O.R. (2d) 769 (C.A.). As an established practice, justice will only require substantial indemnification where there has been “reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 134.”

[29] I do not see this as a case where costs should be awarded on a substantial indemnity basis as I do not find that the respondents’ conduct rose to the level required under Laczko.

[30] I have reviewed the applicant’s bill of costs and find the hourly rates are reasonable. However, the bill of costs lacks detail regarding time expended on various aspects of the litigation, such as preparation of pleadings and factums and attendance at court. It is also not possible to discern if there was duplication of efforts and work by various counsel involved.

[31] Consequently, in accordance with the factors set out Rule 57.01, a fair and reasonable amount to be awarded to the applicant is the amount of $8,500 (inclusive of disbursements and HST) payable within 90 days.

Justice A. Doyle Date: April 28, 2023