Court File and Parties
COURT FILE NO.: CV-22-00000057-00000 DATE: 2023 Jan 20 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: BRIAN WILLIAM ARTHUR and LINDA PORTEOUS ARTHUR, Applicants AND: JOHN CLIFFORD HAMILTON and EARLA HAMILTON, Respondents
BEFORE: The Honourable Mr. Justice Gary W. Tranmer
COUNSEL: Michael D. Swindley, for the Applicants J. Michael Hickey, for the Respondents
HEARD: in writing, at Kingston
Costs Endorsement
[1] The parties to this litigation are neighbours. The issue that led to the substantive Application between them can be fairly characterized as a very minor property boundary encroachment that had existed for many years. In issue was a strip of land 82 feet in length which varied from inches to less than 3 feet in width between the two 2-acre properties owned by the parties. This strip of land had no impact on the Applicants’ property or their use of it. The Applicants knew about it when they purchased their property.
[2] In addressing the issue, after many years when it was a non-issue, common sense did not prevail. Instead, hard feelings, impatience and frustration on the Applicants’ side and perhaps indifference or insensitivity to the concerns of their neighbour on the Respondents’ side led to litigation.
[3] I find that the removal of the encroachment and remediation was not a matter needing urgent attention. On the evidence, it was addressed in a timely manner.
[4] I find that there was no unreasonable delay by the Respondents in rectifying the issue which was completed at the end of July 2022, within five months of the commencement of the Application.
[5] The Respondents had settled with their title insurer to fund the remediation in October 2021.
[6] Contractors do not do this work during the winter months.
[7] In the spring of 2022, the Respondents accepted the Applicants’ proposed contractor to do the work.
[8] Before the matter was brought for hearing in this court by Justice Hurley on June 30, 2022, the Applicants knew the work would likely be completed before the end of July 2022. Indeed, Justice Hurley declined to adjudicate the merits of the Application for that reason as appears from his endorsement.
[9] I find that the work has been completed and was completed by July 28, 2022, to the satisfaction of both parties, by one of the Applicants’ suggested contractors. The Respondents paid the cost of the work in the order of $23,000. The remediation work benefitted both parties.
[10] Contrary to the assertion by the Applicants, I find that the litigation did not result in settlement of all of the Applicants’ claims. There is no Order or Minutes of Settlement in favour of the Applicants within the litigation. Resolution was achieved because the Respondents got the work done.
[11] This is not a case where “settlement was only made possible by virtue of the fact that the parties were able to defer the costs issue to a later adjudication”, as argued in the Factum of the Applicants at paragraph 49.
[12] This is a case where the costs themselves have become the subject of the dispute as in Muskala v. Sitarski, 2017 ONSC 2842, para. 8 to 9.
[13] Resolution of disputes between parties is to be encouraged. Parties should be free to resolve their differences without the spectre of costs being held over their heads.
[14] At most in this case, it might be said that the Application could have been issued, even served, to inspire action by the Respondents. But reasonably, it should have been held in abeyance at that point. Minimal legal costs would have been incurred and, on the evidence, I find that the work would have been done in the same timeframe and as well.
[15] I find that contrary to the assertion by the Applicants, they were not “forced to endure substantial delays and pay ongoing legal costs”.
[16] I find on the materials, and contrary to the assertion by the Applicants, that it could be fairly said that the Applicants were the “primary drivers of the length, acrimony and excessive costs of the litigation”.
[17] I do not find that the Respondents acted as unreasonable litigants as submitted by the Applicants.
[18] Considering the costs factors, I find that the Applicants pursued litigation steps that were unnecessary. The matter was not complex. Urgency was not a factor. There was no unreasonable delay on the part of the Respondents either in the litigation or in the remediation of the issue. The issue was not particularly important. Indeed, it was a non-issue for many years.
[19] Considering the difficulties and challenges faced by so many people in our world, the issue could be fairly viewed as petty. The litigation did not secure a settlement wholly in favour of the Applicants. It was the commitment of the Respondents to getting the work done that resolved the issue. The Respondents paid the contractor chosen by the Applicants to do the work.
[20] I find the hours claimed by the Applicants for the legal work to be excessive. It is twice that of the Respondents’ counsel.
[21] In my view, a fair, just and proportionate resolution of the costs of the litigation issue is an order of no costs.
[22] If I am wrong in that, I would have ordered costs as claimed in favour of the Respondents. I declined to do so because it could be said that they could have addressed the concerns voiced by the Applicants with more sensitivity, and also in recognition that they bore the burden of negotiating successfully with their insurer to fund the remediation.
Decision
[23] I decline to order costs in favour of either party.
[24] It is my understanding therefore that the final resolution of this Application should be a dismissal without costs, but that resolution was not specifically addressed in the hearing before me.
Tranmer, J. DATE: January 20, 2023