Court File and Parties

COURT FILE NO.: CV-22-105 DATE: 2024/07/05 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Raymond Fortier and Elizabeth Ann Fortier, Applicants AND: Joanann Ruth Miller and Priscillann Ellen Miller, Respondents

BEFORE: Somji J.

COUNSEL: Kristen Godwin-Stewart, for the Applicants Cheryl Letourneau, for the Respondents

HEARD: In Writing

Costs Endorsement

[1] The Applicants seek full recovery costs in the amount of $27,557 following their success on an application for a prescriptive easement: Fortier v Miller 2024 ONSC 2567.

[2] The Respondents agree the Applicants are entitled to costs, but argue that it should be limited to partial indemnity costs. I would agree.

[3] Courts have broad discretion to determine to whom costs should be paid and the quantum: s. 131(1) Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, as am.

[4] In exercising their discretion, judges may consider the factors set out in Rule 57.01(1) Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). These factors include but are not limited to: the experience of counsel and rates charged; ability to pay of unsuccessful party; amounts claimed and amount recovered; apportionment of liability; importance of issues and complexity of the proceedings; parties’ refusal to make admissions that should have been made; and the conduct of the parties.

[5] Costs elevated over partial indemnity are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10 of the Rules where substantial indemnity costs are explicitly authorized. The second involves sanction-worthy behaviour by the losing party: Davies v Clarington (Municipality) et al., 2009 ONCA 722 at para 28.

[6] The Applicant did not make an offer to settle within the meaning of rule 49.10 to warrant substantial indemnity costs.

[7] In addition, there was nothing unreasonable in the Respondent’s conduct to warrant an elevated costs award. The Respondents were entitled to defend the claim. While they did not succeed overall, they obtained a narrower easement than that which the Applicants’ sought.

[8] The matter was of significant importance to the Applicants as it determined their ability to access their land. The matter was moderately complex, involved several hearings, and required viva voce evidence.

[9] Lead counsel for the Applicant billed approximately 81 hours for the application and eight hours for co-counsel. I agree with opposing counsel that entries prior to the commencement of the application on September 9, 2022, should not be included, and I have accordingly reduced the billings to approximately 75 hours. Lead counsel is just shy of a four year call and charged a reasonable hourly rate ranging from $200 to $300 per hour.

[10] Applicants’ counsel provided a detailed bill of costs indicating the time spent on preparing the application, attending multiple proceedings, and conducting follow-up work. I find the hours spent were reasonable and commensurate with the work performed and the rates charged. The cost for 75 hours work inclusive of HST and disbursements was $22,394.36.

[11] Ultimately, in determining quantum, the overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances rather than the amount of actual costs incurred by the successful party: Rule 57.01(1)(0.b); see also Boucher v Public Accountants Council for the Province of Ontario, (2004), 71 O.R. (3d) 291 (C.A.) at paras 37-38; Deonath v. Iqbal, 2017 ONSC 3672 at paras. 20-21.

[12] Considering that the applicant was the successful party, the complexity of the application, the time and rates charged, and the absence of any factors that would warrant an elevated costs award, I find that all-inclusive partial indemnity costs in the fixed amount of $14,300 is fair and reasonable in the circumstances of the case.

Order

[13] There will be an order that the Respondents pay the Applicants fixed costs in the amount of $14,300 within 30 days.

Somji J. Date: July 5, 2024