A.M. Tomasovic

Following the dismissal of the appellant's appeal from a Small Claims Court decision, the successful respondents sought costs.

The respondents, who were self-represented at trial but retained counsel for the appeal, claimed substantial indemnity costs of $7,611.62 or partial indemnity costs of $4,593.75.

The appellant conceded costs were payable but argued they should be fixed at $4,500.

Applying the principles of reasonableness and proportionality under Rule 57.01 and section 131 of the Courts of Justice Act, the court fixed the respondents' costs at $5,000 inclusive of fees, disbursements, and HST.

The appellant appealed a Small Claims Court decision that dismissed its claim for unpaid invoices.

The trial judge found the appellant was entitled to the claimed amount but allowed an equivalent set-off due to the appellant's negligent misrepresentation regarding the seasonal sag of hydro wires, which caused the respondents to incur significant extra costs when moving a house.

The Divisional Court dismissed the appeal, holding that the informal pleading standards in Small Claims Court permitted the trial judge to apply set-off based on the facts presented, and that the finding of negligent misrepresentation was supported by the evidence.