Fulmer v. Pugsley, 2013 NSSC 169

SUPREME COURT OF NOVA SCOTIA Citation: Fulmer v. Pugsley, 2013 NSSC 169 Date: 20130604 Docket: ST 391441 Registry: Truro Between: Mark Telvoy Fulmer Applicant v. Arthur Pugsley and Arthur Pugsley Enterprises Ltd. Respondents Judge: The Honourable Justice Patrick J. Duncan Heard: May 24, 2013 , in Truro, Nova Scotia Counsel: John Shanks, for the applicant John T. Rafferty, Q.C., for the respondents By the Court :

Introduction [ 1 ] The Fulmer and Pugsley families have shared a property boundary for at least 3 generations. It is resource land located in rural Nova Scotia. During the ownership by the current generation a dispute as to the location of the common boundary line resulted in litigation. The matter was scheduled for a three day hearing by way of application in court. Shortly before the hearing commenced the parties reached a negotiated settlement. [ 2 ] The applicant, Mark Fulmer, reserved out of the settlement the right to seeks costs.

In light of that position the respondents also reserved the right to seek costs. [ 3 ] This decision is in response to the motions for costs. It follows the filing of affidavits, survey plans, and related documents, viva voce evidence and oral submissions. For the reasons that follow, I have concluded that each party shall bear their own costs.

Legal Framework [ 4 ] The court has a general discretion with respect to ordering costs and may make any order that satisfies the court that the order will do justice as between the parties. see, Nova Scotia Civil Procedure Rule 77.02 [ 5 ] There are a variety of options available to the court.

Rules 77.03 (1) and (2) provide that the court may make an order directing the parties to bear their own costs, pay costs to another on a party and party basis or on a solicitor and client basis. [ 6 ] Rule 77.06 dictates that: Party and party costs of a proceeding must, unless a judge orders otherwise, be fixed by the judge in accordance with tariffs of costs and fees determined under the Costs and Fees Act . [ 7 ] Rule 77.08 authorizes an award of a lump sum as an alternative means to the Tariffs for assessing the quantum of costs. [ 8 ] Tariff F is the presumptive starting point for the calculation of costs in a matter that has been settled.

Facts [ 9 ] Mark Fulmer and Arthur Pugsley Enterprises Ltd. own abutting lots that have a lengthy common boundary. Previous title holders to their lands agreed to construction of a road using that boundary line to define the side limits of the roadway. It has been known as the Little York Road, or the Pugsley Road, depending upon who you ask. [ 10 ] Over the years some parts of the road were used consistently, while other parts fell into relative disuse. There is evidence that at least one part of it was moved off the boundary line, at an undetermined date. [ 11 ] In 1995 Mr.

Pugsley retained a surveyor named Russell Atkinson who placed the property line in a position to the west, or the Fulmer side, of the road. This "Atkinson line" was blazed and Mr. Fulmer took objection.

[ 12 ] In 2003 Mr. Fulmer obtained a survey having employed a surveyor named David Roberts. The Roberts survey described approximately one kilometer of the eastern boundary of the Fulmer property as the western edge of the Little York Road. In other words, Mr. Fulmer had continuous road frontage for one kilometer along the Road. Mr. Pugsley did not accept that as an accurate location of the property line. [ 13 ] The disagreement was left unresolved over the years, both parties believing that they were in the right. In April 2012 Mr. Fulmer made an Application in Court that sought an order: i.

Establishing the boundaries of PID number 30136719 on Little York Road in Five Islands ( the "Property at Issue") which is owned by the Applicant, and PID 20235461 on Little York Road in Five Islands, which is owned by Arthur Pugsley Enterprises Ltd. ("Pugsley Enterprises") (the Pugsley Property"); ii. Declaring that the applicant is entitled to possess the Property at Issue as against the respondents; iii. Enjoining the respondents or their agents from trespassing on the lands of the applicant; iv. Ordering the respondents pay damages to the applicant; Interestingly, Mr.

Fulmer's application does not list a claim for costs, although that has not been raised by the respondents. [ 14 ] The respondents separately filed an Application in Court in August 2012 that was consolidated with the Fulmer application. The Pugsley Application sought the following remedies for the respondents: i. A permanent injunction enjoining Mr. Fulmer from entering upon the Pugsley property; ii. Damages resulting from the trespass upon the Pugsley property; iii.

An order declaring that the boundary between the Pugsley property and the Fulmer property is the Little York Road as depicted in a Plan of Survey dated June 28, 1995 and prepared by Russell Atkinson N.S.L.S.; and iv. Costs [ 15 ] By the time that Mr. Fulmer initiated the application, the surveyor Atkinson was retired and not available as a witness. In the result, the respondents were required to retain the services of a new surveyor named Kirk Nutter. [ 16 ] Mr. Nutter approached the task in a different way than Atkinson and Roberts.

He arrived at a line that while closer to the Fulmer position it did not provide everything that the applicant was seeking. The respondents accepted the Nutter survey and negotiations to settle were undertaken. Since the Nutter survey was not a completely acceptable result for either party, a new boundary agreement was created and a survey prepared to reflect the end agreement. The parties agreed to an exchange of Quit Claim Deeds to arrive at a line that satisfied both parties. [ 17 ] Both parties incurred substantial costs, particularly for the survey work.

The delay in bringing the matter forward at an earlier date necessitated that the respondents incur the cost of a second survey. Positions of the parties

[ 18 ] The applicant takes the position that this was a dispute that he tried to avoid, should never had to engage in, cost a lot of money to litigate, and resolved because the respondents capitulated in the face of an adverse result from the Nutter survey. The applicant says that while the settlement did not award all of the remedies sought by him, it met his primary objective which was continuous road frontage for the entire property line shared with the respondents. This, in his estimation, made him the victor, and he relies on the usual practice that costs follow the result.

While quantum is not in issue at this point of the discussion, I note that he seeks a lump sum to provide substantial if not complete indemnity. [ 19 ] The respondents submit that the usual practice in a case that has settled is for each party to bear their own costs and that is their view. In the alternative, they have challenged the calculation of costs submitted by the applicant and say that any entitlement to costs is substantially less than that being sought.

Analysis [ 20 ] With respect, I disagree with the applicant's founding premise. [ 21 ] The applicant relied upon the Roberts survey which, if the court accepted, would have provided the result Mr. Fulmer sought. However, the respondents had, for a number of years, relied upon the Atkinson survey to support their position. If Mr. Atkinson had still been available and if that survey had been the basis of a trial decision then the respondents would likely have won the day.

But Atkinson was retired, so the Nutter survey was commissioned. [ 22 ] The Nutter survey used a different methodology than either of the Atkinson or Roberts surveys. Instead of focusing on the placement of the Little York Road, it started by identifying the original boundary which was the intended centreline of the roadway. Using that boundary it established where the roadway was supposed to be relative to the boundary.

In doing this it demonstrated that the roadway, in some places, followed the originally intended path, but that in others it deviated from that path, sometimes to the east and sometimes to the west. [ 23 ] The Nutter survey provided considerable support to the applicant's position but if it had been accepted by the court, then the applicant would not have achieved the road frontage he says was the driving force for his application. [ 24 ] I am told that the resulting exchange of lands provided more total square footage to the respondent than it did to the applicant, but that the issue that made this so important to the applicant was the road frontage.

This is the double edged sword that the applicant's argument does not acknowledge. It is true that the applicant achieved his goals and so sees it as a complete victory. But the Nutter survey, which was the catalyst to the respondent settling on these terms, did not give the applicant that entire road frontage. That came as a result of negotiation. [ 25 ] There was a risk of litigation to both parties that negotiation eliminated.

The applicant would not have considered it such a complete victory if the Nutter survey prevailed at the end of the hearing. [ 26 ] For their part the respondents quickly recognized that the support for their argument was undermined by the Nutter survey and quickly sought resolution short of a hearing. [ 27 ] Both parties gained certainty which will make sale or development of their respective lands much easier and more cost effective. A disputed boundary can be a significant impediment to achieving maximum value for a property sale. For his part Mr. Fulmer has the entire road frontage that he sought.

He places value on that. Settlement provided that to him without the cost or risk of a trial.

[ 28 ] In The Law of Costs 2nd ed. (Orkin)(Toronto:Canada Law Book, looseleaf) the exercise of a court's discretion in awarding costs is discussed at page 2-11: The discretion is a judicial one to be exercised according to the circumstances of each particular case and based upon material before the court. ... The principles that should be observed in exercising discretion as to costs have been defined as follows: First, the principle of indemnity is a paramount consideration. Secondly, the courts must approach the matter on the basis that encourages settlement of all actions from the outset.

Thirdly, the court must discourage actions and defences which are frivolous. Fourthly, the court must discourage unnecessary steps in the litigation. The view has been expressed that costs should not be imposed as a matter of arbitrary or capricious practice by courts, but there should be a consistency of pattern. Conclusion [ 29 ] I am satisfied that there were legitimate legal positions being adopted by each party, each founded on long standing and contradictory survey results. There is no evidence to suggest that Mr. Atkinson or Mr.

Roberts were improperly influenced in producing their surveys, or that their surveys should have been seen as unreliable by the party relying upon them. [ 30 ] Once litigation was engaged, it proceeded expeditiously and without unnecessary or frivolous steps. The costs and disbursements incurred by each of the parties were reasonable and not substantially different. [ 31 ] Settlement is to be encouraged.

To treat the applicant in this case as if he had been successful after trial would fail to recognize the benefits that settlement achieved here; and, importantly, would offer little or no encouragement to settle for a future litigant in the respondents' position. [ 32 ] Settlements are achieved for a lot of reasons that may not be known to the opposing parties. The rationale of a party for deciding to settle is generally not available to the court. In this case there may be many reasons that caused the parties to act as they did.

The evidence satisfies me that, at that very least, there were economic reasons for both parties that promoted the compromise that was achieved. [ 33 ] On the totality of these circumstances I conclude that the parties should bear their own costs. J.

.