Court File and Parties

COURT FILE NO.: CV-23-00000018-0000 (Brockville) DATE: 2023Nov30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GEORGE LATIMER, Applicant AND: WENDY SNOOK, Respondent

BEFORE: Mr. Justice Thomas Carey

COUNSEL: Gordon S. Campbell, for the Applicant Michael P. Bird, for the Respondent

HEARD: in writing

Costs Endorsement

[1] The Applicant brought an application for the declaration of a right-of-way (ROW) benefiting his property and allowing passage over the Respondent’s property so that his vehicle may be parked behind his house which is part of a row of four houses in Brockville.

[2] The Respondent filed no material to dispute the application and consented to minutes of settlement filed where the only unresolved issue that of costs was agreed, to be determined by this court upon the filing of written submissions.

[3] The Applicant seeks substantial costs totalling $20,227.00 including fees, disbursements and H.S.T.

[4] The Applicant references factors set out in subrule 57.01(1). He relies on his own affidavit as well as the pleadings in his application.

[5] The Respondent has not sought costs, filed a Bill of Costs nor filed an affidavit. Her counsel relies on a factum which characterizes the actions of the Applicant as that of a younger male bully towards an older female neighbour experiencing serious health difficulties over the period of time since the Applicant came into possession of his property. While there is no affidavit material that outlines the age, employment and health concerns of the Respondent, there is likewise nothing to suggest that the representations on these issues by her counsel are incorrect.

Analysis

[6] I will address the points made by the Applicant in support of the costs he seeks with a reference to the 57.01(1) factors in the Order set out in his Bill of Costs.

a) the amount claimed and the amount recovered in the proceeding

[7] The Applicant states that he was fully successful in securing an award of the remedies being sought in the proceeding.

[8] The Respondent asserts that the only issue could be determined with the existence of a right-of-way which she says was not in dispute and is clearly set out in the title documents registered on these properties. As the issue was not disputed and the claim was settled, the Respondent submits that as in this case where the parties have settled without a hearing, there is no success or failure by either party, there is simply a settlement, and this factor is irrelevant when looking at a matter resolved by minutes of settlement.

[9] I agree with the Respondent. The Applicant is correct that costs are to be awarded in the discretion of the court, and there is no bar to awarding costs where there have been minutes of settlement signed. However, factors other than “success” must be looked at in situations involving minutes of settlement.

b) the complexity of the proceeding

[10] The Applicant asserts that this was a moderately complex matter citing an application record of 92 pages “involving history between the parties of several years, and legal principles involving what is and is not permissible within a right-of-way.”

[11] The Respondent says there was nothing complex about the proceeding and it should not have been commenced without counsel speaking to the Respondent’s counsel about what the applicant was seeking. The Respondent states that the right-of-way clearly existed on title and while it did not specify motor vehicle access, it did not need to. The Respondent says a simple phone call or letter would have resolved this matter without the necessity for any court attendance.

[12] I note that the Applicant asserts a history of attempts to communicate and resolve the issue amicably that has been met with obstruction and non-response on the part of the Respondent to the Applicant’s many communications. However, such communication is not admitted by the Applicant nor any obstruction. The actions that the Applicant attributes to the Respondent are denied completely. The Applicant’s allegations do not involve his or anyone else witnessing the Respondent’s alleged misconduct.

[13] I cannot conclude that this was, in any way, a complex or necessary piece of litigation.

c) the importance of the issues

[14] The Applicant states “the issues are very important to the Applicant and the evidence shows that the Respondent has, for years, been obstructing the Applicant’s only exterior access to his backyard and only off-street parking.

[15] The Respondent says there is no evidence that supports that the Respondent has been obstructing the Applicant’s access to his backyard, only the Applicant’s suspicion. The Respondent also says the only bullying has been by the Applicant, but there is no evidence in support of that assertion either.

[16] In the over 30 years that I have been either a Deputy Judge (of the Small Claims Court), a judge of the Superior Court and more recently, a Deputy Judge in the Court of Nunavut, this argument is possibly the least important legal dispute I have dealt with. Certainly, the Applicant’s position is, to say the least, surprising and suggests that his parking convenience trumps collegial, neighbourly relations and his neighbour’s unacknowledged health struggles. Further, I take from the use of the term “off-street parking” that, in fact, this neighbourhood provides on-street parking for its residents. This further reduces the importance of this issue.

d) the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding

[17] As outlined above, the Applicant relies on “the uncontradicted evidence in the Application Record that the Applicant made repeated attempts to amicably resolve the issues … and only at the last minute, after years of effort by the Applicant, when she was faced with an inevitable legal result before the Superior Court of Justice, did the Respondent capitulate on all issues.”

[18] In addition to the Respondent’s position as outlined above in these Reasons, what the Applicant describes as repeated attempts to amicably resolve the issues, have not been demonstrated in such a way as to amount to “uncontradicted evidence”.

[19] In fact, all that is before this court that is not disputed is the minutes of settlement which represented to the court on consent with the only issue being costs.

e) whether any step in the proceeding was improper, vexatious or unnecessary or taken through negligence, mistake or excessive caution

[20] The Applicant has made no submissions under this heading.

[21] The Respondent however strongly submits the whole proceeding was vexatious and unnecessary and could have been avoided by communication with counsel.

f) a party’s denial of or refusal to admit anything that should have been admitted

[22] Here the Applicant alleges a refusal to admit there was a legally registered ROW in favour of the Respondent or that as the Applicant insists, she knew of a new survey to confirm the exact location of the ROW. The Applicant’s allegation that the Respondent pulled out survey stakes in flagrant contravention of the law is unsupported by any observation evidence from the Applicant or anyone else and is denied by the Respondent.

[23] In my view, the minutes of settlement are an admission of the existence of the right-of-way and an appropriate one. I have no evidence that could, on this application, convince me on a balance of probabilities that the Respondent behaved in the manner alleged in the Applicant’s submissions.

g) the experience of the party’s lawyer

[24] It would appear that both counsel are equally experienced.

[25] I note that there is no breakdown of the hours spent by Mr. Campbell and his law clerk in coming to the full recovery request of $17,148.95.

[26] As previously covered, the Respondent’s position is that the entire application was unnecessary and, in any event, completely devoid any of reasons for any costs to be awarded let alone full recovery costs.

Conclusion

[27] For all the reasons outlined above, I conclude that there is no basis for a claim of any amount of costs by the Applicant. The Respondent has not claimed any costs. I considered exercising my discretion in the circumstances to award $750.00 as a nominal amount to compensate the Respondent for counsel’s time in preparing and producing written submissions in response to the Applicant’s request for substantive costs in this matter. While there was no evidence presented of the Applicant’s pre-application bullying of the Respondent, the tone and lack of restraint and reasonableness in the submissions, are certainly consistent with the Respondent’s allegations of bullying by the Applicant. However, given that the Respondent has not requested costs and the need for finality for these parties, I am not ordering costs against either side.

[28] This case came before me on my first visit to Brockville, having been transferred to the East Region, at my request, upon turning supernumerary. I can only express my surprise and disappointment over the level of animosity that has arisen over a right-of-way in a residential area of this community where apparently, the right-of-way has been unexercised for a considerable number of years. The courts rely on experienced and conscientious members of the Bar to conduct themselves under the Rules of Professional Conduct in such a way that matters like this do not end up in financially and emotionally draining litigation.

Thomas Carey J. Released: November 30, 2023