Applicant owners purchased lakefront property, across which ran above-ground pipe drawing water from lake for respondent neighbours’ property pursuant to “water pipe easement” document executed by predecessors in title. Neighbours entered into owners’ property without permission on basis that pipe was leaking and had to be repaired. Owners’ application for declaration that easement was invalid was dismissed and neighbours’ counter-application for declaration of subsisting easement was granted on terms allowing them to bury new water line within boundaries of easement. Owners’ appeal was allowed in part, to vary declaration to limit easement to leaving existing pipeline in present position and allowing neighbours to make only those repairs to which owners agreed in advance. Costs submissions received. Owners awarded costs in amount of $8,000. There were no unusual circumstances justifying departure from usual approach of setting aside order for costs below. As appeal was allowed only in part, it did not automatically follow that owners were entitled to full costs of proceedings below. Quantum of costs had to reflect that there was divided success. Owners enjoyed greater success as they succeeded on issues that drove proceedings below, namely whether neighbours could enter onto their lands without their prior permission to repair pipeline and whether neighbours had right to replace existing pipeline. Owners’ suggestion about neighbours’ conduct, namely that there was no leak in pipeline, was based on correspondence that arose after conclusion of proceedings and which had not been tested in crucible of litigation. Meaning to be taken from correspondence was disputed and record would not support credibility findings necessary to resolve dispute so as to find reprehensible behaviour warranting sanction of costs.
Mihaylov v. 1165996 Ontario Inc. (2017), 2017 CarswellOnt 3741, 2017 ONCA 218, Eileen E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); additional reasons (2017), 2017 CarswellOnt 1653, 2017 ONCA 116, E.E. Gillese J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.).