Cunningham et al. v. Zebarth Estate, (1998) 71 O.T.C. 317 (GD)

• Judge: Aitken, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: July 06, 1998
• Jurisdiction: Ontario
• Citations: (1998), 71 O.T.C. 317 (GD)

Cunningham v. Zebarth Estate (1998), 71 O.T.C. 317 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. JL.149

Irene Bertha Cunningham, Lon Cunningham, James Clifford Stevenson and Christine Roberta Stevenson (plaintiffs) v. The Estate of Joseph Zebarth (defendant)

(No. 1115/95)

Indexed As: Cunningham et al. v. Zebarth Estate

Ontario Court of Justice

General Division

Aitken, J.

July 6, 1998.

Summary:

The plaintiffs were successful against the defendant in an action seeking orders granting the plaintiffs title by way of adverse possession to two separate parcels of property to which the estate held legal title. See 62 O.T.C. 347. The plaintiffs sought solicitor and client costs.

The Ontario Court (General Division) awarded the plaintiffs one-half of their reasonable solicitor and client costs on a solicitor and client scale and one-half on a party and party scale. This division took into account the defendant's reprehensible behaviour before litigation was started and the fact that the litigation was handled in an appropriate fashion.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - See paragraphs 1 to 8.

Cases Noticed:

Mortimer v. Cameron (1994), 68 O.A.C. 332; 17 O.R.(3d) 1 (C.A.), refd to. [para. 2].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193, refd to. [para. 2].

Counsel:

J. Barry Fortey, for the plaintiffs;

Michael A. Chambers, for the defendants.

This application was heard by Aitken, J., of the Ontario Court (General Division), who released the following decision on July 6, 1998.