



COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Cole, 2013 ONCA 201

DATE: 20130402

DOCKET: C55844

MacFarland, Rouleau and Pepall JJ.A.

BETWEEN

Lourdes Singh in Trust, Lourdes Singh and Binod
    Singh

Plaintiffs (Appellants)

and

David Cole, James Wickens, Paul Ross, Catherine
    Clemens, Karen Clemens, Nancy Clemens, James Clemens, the Estate of Judith
    Thrasher, Deceased, by Her Estate Trustee, Garrett John Thrasher

Defendants (Respondents)

and

Her Majesty the Queen in
    Right of the Province of Ontario as represented by the Minister of Natural
    Resources

Third Party (Respondent)

Sam Cosentino, for the plaintiffs/appellants Singh

Robert J. Fenn for the respondents, Clemens and Ross

Izaak De Rijcke, for the defendant/respondent, the
    estate of Judith Thrasher

Dave Vickers, for the respondent (third party), Her
    Majesty the Queen in Right of the Province of Ontario as represented by the
    Minister of Natural Resources

Gavin Smyth, for the defendants/respondents, David Cole
    and James Wickens

Heard and released orally: March 25, 2013

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated December 21, 2011 (incorporating her
    decisions of December 21, 2011 and March 15, 2012).

ENDORSEMENT

[1]

The appellants and the respondents are involved in long standing
    litigation concerning the boundaries that exist among three islands and part of
    a fourth island in Lake Huron.

[2]

The islands were once separated by the waters of Lake Huron.  Over the
    years the lake level has receded and what were once four separate islands, as
    that term is commonly understood, are now part of a larger land mass that
    includes what was once lake bottom. The ownership of this now partially exposed
    lake bottom is the subject of the litigation.

[3]

The appellants are the current owners of Island 11. The respondents Cole
    and Wickens are their predecessors in title. The respondent Ross is the current
    owner of part of Cranberry Island. The respondents Clemens are the current
    owners of Island 11A and the estate of Judith Thrasher, the owner of Island
    11D.

[4]

During the course of the litigation, Thrasher accepted the appellants
    settlement offer dated February 14, 2011. Thereafter the appellants submitted
    to Thrasher several consent orders, which purported to reflect the settlement
    agreement between themselves and Thrasher. Thrasher signed the necessary
    consent. All of the proposed draft orders expanded on the terms of the
    agreement and as the motion judge noted in paragraph 35 of her reasons, several
    provisions contained in the draft orders may have had the effect of
    determining certain boundaries in issue or limiting or restricting ownership,
    easements and rights-of-way of the other co-defendants in the broader
    litigation.

[5]

The litigation, which has been ongoing since 2000, concerns boundary
    disputes among the current and previous owners of Island 11 and the current
    owners of part of Cranberry Island, Island 11A and Island 11D. While it was
    open to the appellants and Thrasher to resolve aspects of the lis between them,
    it was not open to them to do so in a way that affected the rights and/or
    obligations of the other parties to the litigation.

[6]

The motion judge appreciated the issues among the parties and the effect
    that the appellants effort to enforce the agreement could have on the overall
    litigation were she to accede to their motion and grant the declarations contemplated
    by the terms of the settlement.

[7]

In our view, her order was correct in the circumstances of the
    particular case.

[8]

The settlement agreement remains and, as between the appellants and
    Thrasher, the appellants can, of course, plead and rely on that agreement in
    the overall litigation. We also note that the application judges order in
    paragraph 4 thereof dismissed Thrashers counterclaim including her request for
    a right of way.

[9]

As found by the motion judge any order resulting from the settlement
    between the appellants and Thrasher should not affect the issues as among the
    appellants and the other defendant respondents. As a result, the appeal is
    dismissed.

[10]

As
    to costs, leave is granted to appeal the costs orders made against the
    appellants on the application. We see no error in the costs award made to
    Thrasher. Given the date of the offer to settle made by Ross and Clemens, the
    quantum of the substantial indemnity costs awarded to them was excessive and we
    would reduce those costs from $20,033.45 to $15,000.00 all inclusive.

[11]

As
    for the award to Cole and Wickens, we see no basis upon which the motion judge
    could have awarded substantial indemnity costs and we note that no materials
    were filed by them. Accordingly, we would reduce those costs to $1500 all
    inclusive.

[12]

Costs
    of the appeal are awarded to Clemens and Ross in the sum of $10,000; to
    Thrasher, in the sum of $7,000; and to Cole and Wickens, in the sum of $1,000.  All
    amounts are inclusive of disbursements and applicable taxes.

J.
    MacFarland J.A.

Paul
    Rouleau J.A.

S. E.
    Pepall J.A.


