Court File and Parties

COURT FILE NO.: CV-22-1673 DATE: 20240311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

1711811 Ontario Ltd., and Olga Maria Paiva, operating as Adline Plaintiffs/Defendants by counter claim – and – Buckley Insurance Brokers Ltd., Robert Buckley, 1730849 Ontario Ltd., The Corporation of the Town of Newmarket, Lake Simcoe Region Conservation Authority, and 1979286 Ontario Inc. Defendants/Plaintiffs by counter claim

Counsel: Sara Erskine, Fraser Dickson for the Plaintiffs Jonathan Rosenstein, Counsel for the Defendants, Buckley Insurance Brokers Ltd., Robert Buckley, and 1730849 Ontario Limited J. Murray Davison, Counsel for the Defendant, The Corporation of the Town of Newmarket

Heard: in writing

Decision on Costs

Leibovich J.

[1] The plaintiff, defendant by counterclaim, Olga Maria Paiva, is the owner of 1711811 Ontario Ltd. 171811 Ontario Ltd. is the registered owner of a mixed commercial residential building located at 255 Main Street South, Newmarket, Ontario. For ease of reference, I will hereinafter refer to the plaintiffs collectively as “Ms. Paiva” or “the plaintiffs”.

[2] The defendants, plaintiffs by counterclaim, Robert Buckley, is the owner of Buckley Insurance Brokers Ltd. and 1730849 Ontario Ltd. 1730849 Ontario Ltd. is the registered owner of an adjacent commercial building located at 247 Main Street South, Newmarket, Ontario, which property is subject to an easement in favour of the plaintiffs. For ease of reference, I will hereinafter refer to Mr. Buckley and his related companies as “Mr. Buckley” and/or the “Buckley defendants”.

[3] Ms. Paiva asserted that Mr. Buckley had substantially interfered with her easement rights and this interference had been enabled by the Town of Newmarket, whom Ms. Paiva has named as a defendant (the “Newmarket defendant”). Mr. Buckley counterclaimed against Ms. Paiva and asserted that Ms. Paiva has intentionally interfered with his property rights at 253 Main St. by illegally parking on his parking pad.

[4] In written reasons set out in Paiva v. Buckley, 2023 ONSC 6541, I decided as follows:

Conclusion

[96] The plaintiffs’ claim against the Town of Newmarket is dismissed.

[97] The plaintiffs’ claim against Mr. Buckley is allowed only to the extent that an injunction will be granted preventing anyone from parking in the tunnel and requiring Mr. Buckley to have any cars parked removed.

[98] The plaintiffs’ claim for nuisance damages is dismissed as is their claim for aggravating and/or punitive damages.

[99] The Buckley defendants’ claim for an injunction preventing the plaintiffs from parking on the pad at 253 Main St. is granted.

[5] The Newmarket defendant seeks costs on a partial indemnity basis up until September 2015 when they made an offer to settle to have the action dismissed against them without costs and costs on a substantial indemnity basis from that point forward. They are seeking:

a) Partial indemnity costs to the date of the Offer to Settle, in the amount of $54,921.39 including HST;

b) Substantial indemnity costs from the date of the Offer forward, in the amount of $98,897.60 including HST; and

c) Disbursements attached at the Index in the amount of 1,670.88 including HST.

[6] The plaintiffs submit that with respect to the Newmarket defendant, the amounts claimed are excessive. They submit costs between $75,000- $100,000 are reasonable.

[7] The Buckley defendants submit that they are the successful party and that they are entitled to costs on a partial indemnity basis in the amount of $115,895.34, including HST and $20,284.83 in disbursements, including HST. The plaintiffs submit that with respect to the Buckley defendants, they were the successful party. They seek costs on a partial indemnity basis in the amount of $169,989.52 in costs and $33,219.67 in disbursements, inclusive of HST. In the alternative the plaintiffs submit that they should each have to bear their own costs except that the Buckley defendants should have to pay the costs of the 2014 motion before Justice O’Marra that resulted in an interim injunction with respect to parking.

Law and Analysis

[8] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43:

131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[9] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the factors for the court to consider on an award of costs:

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 solicitor; and

(i) any other matter relevant to the question of costs.

(2) The fact that a party is successful in a proceeding or a step in a proceedings does not prevent the court from awarding costs against the party in a proper case.

[10] The myriad of factors listed in Rule 57.01 ensures that a court considers all the relevant circumstances which allows the court to determine an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 164 O.A.C. 234 (C.A.); Moon v. Sher (2004), 246 D.L.R. (4th) 440 (Ont. C.A.); Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.

The Newmarket Defendant

[11] I have reviewed carefully the Newmarket defendant’s bill of costs. The plaintiffs submit:

First, the Town claims 101.9 hours for examinations for discovery, almost all (82.9 hours) by the senior timekeeper, Mr. Davison. The amount claimed by the Town for these examinations is significantly more than the time claimed by either the Buckley Defendants or the Plaintiffs, which is unreasonable given that the participation of the Town and Mr. Davison was limited in comparison to the other parties. This time should be reduced accordingly by 50%.

Second, the Town claims 227.6 hours for “pre-trial matters”, not including its “Document Production/Affidavit of Documents” or “Examination for Discovery” phases, for which the Town already cumulatively claims several hundred hours of time. Again, this time is vastly in excess of the time claimed by either the Buckley Defendants or the Plaintiffs

[12] I agree with the plaintiffs that the amount of hours claimed are excessive, especially given the rather limited role that the Newmarket defendant played in these proceedings. The amount of hours the Newmarket defendant claimed for discoveries and pre-trial matters is vastly in excess of the amount claimed by the other parties who had a much more extensive participation in the proceedings. Having adjusted the amount to account for the excess billings, and having regard to all the factors set out in s. 57.01(1), an appropriate amount is costs to the Newmarket defendant in the amount of $76,670.88, including HST and disbursements.

The Buckley Defendants

[13] Both the plaintiffs and the Buckley defendants claim that they were the successful parties. While the plaintiffs did obtain some success at trial by my ordering of the permanent injunction preventing anyone from parking in the laneway and requiring the Buckley defendants to have those parked cars removed, the Buckley defendants were overall the more successful party. I dismissed the plaintiffs’ claim for nuisance and for aggravating and punitive damages. I found against the plaintiffs regarding their claim that they could park on the Buckley parking pad. Critically, the bulk of the trial was spent on the plaintiffs’ claim that Mr. Buckley had substantially interfered with the plaintiffs’ easement right by changing the height of the tunnel and by overtaxing the tunnel with more traffic. I found against the plaintiffs on these key issues, which were really the heart of the litigation. I said:

a) “I disagree that any changes that might have been made to the height of the tunnel substantially interfered with the plaintiffs’ easement rights.”

b) “Concern that your right-of-way may be encroached upon in the future or hindered in the future when required does not mean that there has been a substantial interference in that right-of-way. Ms. Paiva was never granted, nor could she be granted, exclusive use of the tunnel. Use of the tunnel was always going to have to be shared. The fact that increased coordination is now required to ensure proper access again does not equate with there being a substantial interference in that access.”

c) “Mr. Buckley owns the tunnel. He is also required to maintain it. He is allowed to complete construction on the tunnel as long as he does not materially alter its dimensions. There is no evidence that he has done so. I agree with the plaintiffs that Mr. Buckley is required to provide the plaintiffs with reasonable notice of any construction and must also ensure that the construction materials do not block access which has happened on occasion. I do not view those isolated incidents as substantially interfering with the plaintiffs’ easement rights.”

d) “I agree that Mr. Buckley should have abided by the court order but that does not mean that his failure to do so was a substantial interference with Ms. Paiva’s easement rights.”

[14] The Buckley defendants were the more successful party and they are entitled to their costs. The bill of costs are reasonable. However, I will reduce their costs by $20,000 to reflect the success achieved by the plaintiffs for the parking injunction. I will also reduce their cost by $15,000, which was roughly the costs the Buckley defendants are seeking for the contempt motion. I do so to reflect the fact that, as stated in my reasons, there were numerous instances when the Buckley defendants were in breach of court orders. Breaching court orders cannot be condoned. Therefore, the plaintiffs shall pay costs to the Buckley defendants in the amount of $80,895.34 including HST and $20,284.83 in disbursements, including HST.

The Honourable Justice H. Leibovich

Date Released: March 11, 2024