As spring leans toward summer, many begin to think about spending time sitting on a dock. While sitting on a dock (or a patio, if that is more your thing), consider the recent decision of Krieser v. Garber, [2019] O.J. No. 1619.
In 2012, the Garbers decided to build a dock attached to their property on Lake Simcoe. They retained Nealon Wood Products to do so. It must have been a nice dock. The cost was $150,000.
Unfortunately, the dock was not built according to Ministry of Natural Resources-approved plans. It was built 17 feet to the west of where it was supposed to be. Boulders placed around the dock for ice protection extended over the projected lot line of Garbers’ neighbour, the Kriesers. While the placement of the dock improved the view of the Garbers, it did not improve the Kriesers’ view. Additionally, it interfered with the Kriesers’ ability to access their own property by boat.
At trial, the court found that injunctive relief was appropriate. The Garbers were ordered to remove the dock from its current location, and repair the lake bed. In addition, the Garbers and Nealon were ordered to pay the Kriesers $100,000 in punitive damages.
On the issue of costs, reported here, the court awarded the Plaintiff costs of $518,000 for the two week trial, payable by the Garbers and Nealon, jointly and severally. The Garbers were ordered to pay an additional $80,000 for costs “thrown away” in relation to an earlier adjournment of the trial.
In awarding costs, the court noted that the Plaintiff had made a very reasonable offer to settle. The offer was, according to the judge, “the most generous offer to settle I have ever seen”.
In their offer, the Kriesers offered to pay for all of the costs of having the dock and the protective boulders moved. It was estimated that this costs could be in the $150,000 range. This “with prejudice” offer was relied on, in part, to support an award of substantial indemnity costs. It also was a factor in the award of punitive damages.
Thanks for reading. Have a great weekend.