CITATION: LeVan v. Hatton-Bauer, 2026 ONSC 4526
DATE: 2026-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
William Ryerson LeVan and Joan Elaine LeVan
Applicants
– and –
Jane Hatton-Bauer
Respondent
Jonathan Miller, counsel for the Applicants
Amber Bonnell, counsel for the Respondent
HEARD: January 13, 2026; costs submissions due May 20, 2026
the honourable JUSTICE r. b. REID
DECISION ON COSTS OF APPLICATION
Background:
1The parties own adjacent cottage properties on the shore of Lake Rosseau. The Hatton-Bauer parcel includes a right-of-way in favour of the LeVan parcel to permit access from the public roadway.
2The dispute concerned the LeVans’ right to use a footpath (the “pathway”) over the Hatton-Bauer property that runs from the right-of-way to an area on the LeVan property referred to as the “Plateau”.
3By application dated February 3, 2025, the LeVans sought a declaration that the property of Ms. Hatton-Bauer was subject to a prescriptive easement over the pathway on her property in favour of the LeVans, as well as a declaration permitting their use of the easement and a prohibition on its obstruction.
4In a related and prior application dated June 20, 2024, Ms. Hatton-Bauer sought a declaration that the LeVans had no right to use her property as to any non-registered easement and prohibiting trespass by the LeVans. She also sought an order for the removal of chattels and restoration of any changes made to her property through their trespass.
5The two applications were consolidated.
6For the reasons set out in my decision of April 15, 2026, reported at 2026 ONSC 1596, I found that a prescriptive easement had been established over the pathway, subject to its dimensions and location as existed on September 17, 2007. Accordingly, the LeVans and their invitees were found to be entitled to traverse the pathway. There was also an order that the LeVans remove at their own expense any unauthorized alterations made to the Hatton-Bauer property outside the limits of the prescriptive easement as defined, and any chattels that have been placed on it without authorization.
7As noted in my application decision, the LeVans operated under the mistaken assumption that they had control over the pathway and could use and develop it as they wished. For the reasons I set out, that was an incorrect assumption. They only had rights limited to the uses made in and before September 2007.
8As a result, despite my finding that there is a prescriptive easement in favour of the LeVans, there is no permitted use of the pathway by them beyond what was in place prior to September of 2007, namely the accessing of the Plateau on foot or by vehicles similar to an ATV for the purpose of maintenance of the septic system and the storage of wood and other materials used to maintain the LeVan property.
9Since the parties have been unable to agree on the issue of costs, the matter is now before me for resolution.
Positions of the Parties:
10The LeVans seek full indemnity costs in the all-inclusive amount of $57,208.40, primarily based on their success in the application, but also relying on the other factors listed in r. 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). In the alternative, assuming partial success by Ms. Hatton-Bauer, the LeVans seek partial indemnity costs in the all-inclusive amount of $43,575.94 based on 75 percent of the full amount. I note that on a substantial indemnity basis, their costs amount to $51,755.02.
11Ms. Hatton-Bauer incurred costs totalling $150,153.85 which significantly exceeded the costs incurred by the applicants. However, those costs included expert report fees of $7,133.75 and in addition, she submits that the fact-driven nature of the proceeding meant that she needed to reconstruct a multi-year timeline as to the ownership, use, and control of the pathway which was largely relied upon by the LeVans. As such, she submits that the costs incurred by her were not unreasonable.
12Ms. Hatton-Bauer points to the divided success of the parties and submits that there should be no order as to costs. In the alternative, she seeks costs on a partial indemnity basis based on that fact that an application was necessary to control the unfettered expansion of use over the pathway by the LeVans.
Applicable law:
13The court’s discretion to award costs is established by s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The non-exhaustive list of factors to be considered by the court in exercising its discretion is set out in r. 57 of the Rules.
14In addition to the presumptive factor of success, r. 57.01 requires the court to consider the principle of indemnity, the amount of costs that an unsuccessful party could reasonably expect to pay, the complexity of the proceeding, the importance of the issues, and the conduct of any party that tended to shorten or to unnecessarily lengthen the duration of the proceeding.
15In general, courts have established that the purposes behind awards of costs are to indemnify successful litigants for the cost of litigation, encourage settlement, and where necessary to discourage and sanction inappropriate behaviour by litigants.
16As stated by the Ontario Court of Appeal in Lowndes v. Summitt Ford Ltd., 2006 CanLII 11654 (ON CA), [2006] O.J. No 1438 at para. 3, where success is substantially divided, no order of costs will be appropriate.
Analysis:
17Considering the provisions of r. 57, I find that several factors weigh equally on both parties, or are not relevant at all:
The outcome was important to both parties, in that the use, and the extent of use of the pathway affected their enjoyment of their respective parcels.
Neither misconducted themselves in the litigation, either in relation to lengthening the proceedings or by way of taking inappropriate steps. The consolidation of the two applications led to an appropriate economy of court time.
The proceedings were relatively complex, at least factually, since historical use of the pathway over decades was at issue.
Neither made an offer to settle.
The comparative difference between the costs incurred by the parties is not relevant in the circumstances, based on my decision below.
18Each party alleges that the actions of the other made the litigation necessary. Ms. Hatton-Bauer began her application first, to stop what she considered to be the LeVans’ unauthorized use of the pathway, which she observed had been substantially expanded in recent years. The LeVans responded with their application because their access to the Plateau had been suddenly interrupted by Ms. Hatton-Bauer parking her vehicle across the pathway entrance.
19As I observed in the application decision, the precipitating problem was the LeVans’ significant expansion of the pathway and its use. That expansion was made partly on a gradual basis over the years, but largely by way of a major change in approximately 2022 and 2023, to allow vehicular access to the Plateau. The LeVans widened the pathway, levelled the ground, applied gravel, expanded the entranceway, and removed trees and brush. It was not surprising that Ms. Hatton-Bauer commenced her application to seek to preserve her property. The LeVan application, while commenced separately, was in effect a cross-application that became necessary because of Ms. Hatton-Bauer’s blockage of the pathway. In short, litigation was required to resolve the land use issue, and it is not consequential for the purposes of this costs decision to try to determine which party precipitated the litigation.
20The key factor in considering a costs award in this case is the result achieved.
21The parties disagree as to their respective success.
22I have considered the position of the LeVans that their claim for a prescriptive easement was allowed, resulting in restored access to the Plateau for themselves and their invitees via the pathway over Ms. Hatton-Bauer’s property. That result allows them to assert that they were successful.
23I have also considered Ms. Hatton-Bauer’s position that scope of the pathway and its use by the LeVans have been significantly restricted by the decision, and that they have been required to restore it to its dimensions and location as of September 2007. According to the evidence on the application, use of the pathway under those terms in and before 2007 had been uncontroversial.
24Based on those considerations, there is merit in Ms. Hatton-Bauer’s submission that success on the applications was divided. The LeVans received a decision confirming their ability to access the Plateau via the pathway, but with significant restrictions to both the dimensions and uses to which they had been accustomed. Correspondingly, Ms. Hatton-Bauer was unsuccessful in preventing any access across her property to the Plateau but was successful in having the permitted access and dimensions restricted, and has the benefit of the pathway and the adjacent land being restored to its previous condition.
Conclusion:
On balance, I find that success has been divided based on the result achieved in the two
consolidated applications, and on that basis, there will be no order as to costs.
Reid J.
Released: August 5, 2026
CITATION: LeVan v. Hatton-Bauer, 2026 ONSC 4526
COURT FILE NO.: CV-25-00000128-0000
DATE: 2026-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
William Ryerson LeVan and Joan Elaine LeVan
Applicants
– and –
Jane Hatton-Bauer
Respondent
decision ON COSTS OF APPLICATION
Reid J.
Released: August 5, 2026