Layton v. Canadian Dental Hygienists Association, 2025 ONSC 2156

Court File No.: CV-21-87726
Date: 2025-04-11
Superior Court of Justice – Ontario

Between:
Melynda Layton, Plaintiff
and
Canadian Dental Hygienists Association (“CDHA”), Defendant

Before: Marc Smith

Counsel:
Self-represented Plaintiff
Craig O’Brien and Rebecca Akong, Counsel for the Defendant

Heard: In writing

Costs Decision

Background

[1] On November 28, 2024, I rendered my trial decision dealing with a dispute between neighbouring commercial properties regarding the right-of-way of a laneway. Ms. Layton’s action was dismissed and CDHA’s counterclaim was dismissed.

[2] The CDHA seeks costs for both the trial and the motion that was heard by Rees J. (costs were reserved to the trial judge). Ms. Layton opposes the request and submits that both parties should be responsible for their own costs. Alternatively, Ms. Layton says that if costs are to be awarded, they should not exceed $6,000 plus HST.

[3] For reasons to follow, Ms. Layton shall pay the sum of $35,000 to CDHA for the motion and the trial.

Legal Principles

[4] Costs are at the discretion of the court: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1).

[5] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194 (the “Rules”), sets out the factors that a court may consider when deciding on a cost award.

[6] The overriding principles of fairness and reasonableness must be applied to each individual case: Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.).

Analysis

[7] The CDHA and Ms. Layton have filed lengthy costs submissions. I do not intend to summarize the parties’ arguments. Suffice it to say that the CDHA is seeking substantial indemnity for both the motion and trial because of the following: Ms. Layton protracted the litigation, she disregarded the Rules causing many procedural deficiencies, and she brought a litany of motions, all of which increased CDHA’s costs. The CDHA’s Bill of Costs reflects that the total costs for the motion on a partial indemnity basis is $22,985.22, all-inclusive. The total costs for the trial on a partial indemnity basis is $79,717.20, all-inclusive.

[8] Ms. Layton submits that CDHA’s costs are unreasonable and disproportionate in all circumstances. They exceed three times more than what the Rules permit. Similarly, Ms. Layton argues that the CDHA failed to comply with the Rules regarding the disclosure of documents, nor did they comply with Williams J.’s former order to deliver an amended Affidavit of Documents. Ms. Layton did not provide a comparative Bill of Costs.

[9] The main issue at trial was whether Ms. Layton had a right-of-way over the entire length of the laneway. The CDHA was clearly the successful party in that regard. In my view, the other issues at trial, namely the damages claims, were superfluous. And regarding the motion, the CDHA was also the successful party for that hearing.

[10] Costs are commonly awarded on a partial indemnity basis unless there are compelling reasons to justify an award on a higher scale.

[11] As I indicated in my Reasons for Judgment, without measuring fault, I found that both parties were responsible for escalating a simple property dispute into an outright neighbourly war. Cooler heads should have prevailed. I am not going to consider the conduct of either party in the assessment of the costs. Therefore, there are no reasons to justify a costs award on an elevated basis.

[12] I will focus my analysis on some of the other factors set out in r. 57.01 of the Rules.

[13] Before delving into the r. 57.01 factors, it is important to note that this matter was commenced under the Simplified Procedure. Because this claim was commenced after January 1, 2020, r. 76.12.1 of the Rules applies, meaning that no party to an action may recover costs exceeding $50,000 or disbursements exceeding $25,000, exclusive of HST.

[14] On the main issue, the CDHA was the successful party. I found that Ms. Layton did not have a right-of-way over the full length of the laneway in dispute. Being the successful party, I find that CDHA is entitled to its costs.

[15] The CDHA filed two Bills of Costs: one for the motion and the other for the trial. Both Bills of Costs reflect that there were multiple timekeepers. Invariably, with multiple timekeepers, there are duplications of work. The total approximate time spent for the motion and trial was 115 hours and 370 hours, respectively. While it would have been helpful if Ms. Layton had submitted her Bill of Costs for comparative purposes, I am still of the view that the time spent was somewhat excessive, even recognizing that there were over 10,000 pages of documents filed by the parties at trial and probably an unreasonable number of documents for the motion.

[16] The hourly rates of the CDHA are appropriate and commensurate with experience.

[17] The main issue was not complex: does Ms. Layton have a right-of-way over the entire length of the disputed laneway? The trial of that issue should not have lasted as long as it did. It was lengthier because of the superfluous claims. Furthermore, given that the trial was pending (to be heard within six months of the motion) and dealing with the same issues, it is my view that Ms. Layton’s motion was unnecessary.

[18] The main issue was important because it impacted daily the relationship between these two parties. The other issues (breach of contract, damages and out-of-pocket expenses, economic loss) were not important and should not have been brought to trial by either party.

[19] Ms. Layton cannot be surprised that the costs associated with the motion and the trial are high. The motion was initially scheduled to proceed in January 2024 but because Ms. Layton settled with the City of Ottawa (previously a party) without sufficient notice to the CDHA, it had to be adjourned. Ms. Layton requested injunctive relief limiting the CDHA’s ability to use or encumber any part of the laneway. The CDHA was required to vigorously defend the motion. With respect to the trial, being an experienced litigator, Ms. Layton was fully aware of the time and preparation needed to defend an action.

Disposition

[20] In exercising my discretion, I find that a reasonable and proportionate amount of costs for the motion and the trial is $35,000, all-inclusive, payable by Ms. Layton to CDHA.

Marc Smith
Released: April 11, 2025