Court File and Parties

Court File No.: CV-19-12546 (Welland) Date: 2023/09/26 Superior Court of Justice - Ontario

Re: Richard J. Kubiniec, Plaintiff And: Andre Dy and Suzana Marija Mrakovcic-Dy, Defendants

Before: Justice D.J. Gordon

Counsel: Derek Sinko, for the Plaintiff Alyssa M. Adams, for the Defendants

Heard: In Writing

Supplementary Endorsement Re: Costs

[1] In my reasons for decision, released March 24, 2023 as 2023 ONSC 1916, I invited written submissions from counsel on the issue of costs.

[2] In this proceeding, the plaintiff claimed title by adverse possession as well as a prescriptive easement. The defendants sought an injunction and a damage award for trespass. Following a five-day simplified proceeding trial, I dismissed both the claim and counterclaim.

[3] The defendants seek an award for costs of $172,028.97 for fees, disbursements and HST, said to be calculated on a partial indemnity basis to June 14, 2021, and substantial indemnity thereafter.

[4] The plaintiff says no costs should be awarded as a result of divided success. Alternatively, he relies on the limit on costs as set out in Rule 76.12.1(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[5] This action commenced in 2017. Rule 76.12.1(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that the limit on costs does not apply to actions commenced before January 1, 2020. There was mixed success; however, the primary focus of the evidence was with respect to the plaintiffs’ claims. The defendants offer to settle on June 14, 2021 was more favourable than the result at trial. In result, I conclude the defendants are entitled to an award for costs with allowance provided for mixed success, in a modest amount, and for enhanced costs due to the offer to settle.

[6] An award for costs is discretionary. The principles set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are now well understood, often summarized as reasonableness, fairness, and proportionality. In this regard, the calculations presented on behalf of the defendants would be appropriate, with some reduction. However, Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 recognizes a different approach on costs given the purpose of simplified proceedings. Proportionality is a significant factor in this type of case as well as recognising limitations on costs and encouraging litigants to minimize expense.

[7] To some extent, the nature of the issues in this case, being most complex, makes it difficult to apply the approach required under Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Nevertheless, the importance of the purpose of simplified proceedings must take priority. The hard limit on costs for actions since January 2020 may be considered as codifying principles in the caselaw and certainly demonstrates the limits to be placed on costs and the need to minimize expense.

[8] In all of these circumstances, it would be an impossible task to conduct a line-by-line analysis on the costs as claimed. Rather, having regard to Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I am of the view a more holistic approach is warranted. In so doing, I conclude a fair and reasonable award, factoring in limited mixed success, entitlement to enhanced costs, and the purpose of simplified proceedings, is $75,000.00, inclusive of disbursements and HST. Such amount is hereby awarded to the defendants.

D.J. Gordon J. Released: September 26, 2023

COURT FILE NO.: CV-19-12546 (Welland) DATE: 2023/09/26 ONTARIO SUPERIOR COURT OF JUSTICE Richard J. Kubiniec – and – Andre Dy and Suzana Marija Mrakovcic-Dy Supplementary Endorsement RE: COsts D.J. Gordon J. Released: September 26, 2023