Quantum of costs had to reflect divided success

Ontario civil | Civil Practice and Procedure

Costs

Costs of appeals

Quantum of costs had to reflect divided success

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.).

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Ford government’s cuts to Toronto city council ruled constitutional

Histories of Canadian law and Métis people are entwined, says Jean Teillet

More women are on TSX company boards - but there’s slow progress to the C-Suite, says Osler

GM lawyer Michael Smith becomes partner at Bennett Jones

Ontario court rules cap on general damages does not apply to sexual abuse

House of Commons reveals legal fee reimbursement over $54k

Most Read Articles

Ontario court rules cap on general damages does not apply to sexual abuse

Man discharged from his fourth bankruptcy

Insurance lawyers reveal their referral philosophies

Court of Appeal rules auto insurer not liable for parental negligence claim stemming from accident