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Enhanced costs rules do not apply to wholly dismissed claims in Small Claims Court.
This decision addresses costs following the dismissal of the plaintiffs' Small Claims Court action for damages related to deteriorating deck beams, which was dismissed due to an expired limitation period and failure to establish liability and damages.
The defendants sought enhanced costs based on an unaccepted offer to settle.
The court, bound by Divisional Court and Court of Appeal precedent, affirmed that enhanced cost provisions (r. 14.07(2) and r. 49.10(2)) do not apply when a plaintiff's claim is wholly dismissed.
However, the court exercised its discretion under s. 29 of the Courts of Justice Act to penalize unreasonable behaviour.
Manitoulin Cedar Products, which made a reasonable offer to settle, was awarded elevated costs ($9,573.00), while Whittington Engineering Ltd. and IWS Wood Products Inc., who made no financial offer and showed unwillingness to settle, were awarded only the statutory maximum 15% of the claim amount plus disbursements ($5,323.00).
Deathbed transfer of $35,000 upheld as a gift, but $90,000 transfer returned to estate under resulting trust.
The applicant, the surviving spouse and residuary beneficiary of the deceased's estate, applied for the return of $125,000 transferred by the deceased to her son and daughter-in-law shortly before her death.
The court found that the $35,000 cheque to the daughter-in-law was a valid gift, as hearsay evidence of the deceased's intention was admissible and corroborated, rebutting the presumptions of resulting trust and undue influence.
However, the $90,000 cheque to the son was not proven to be a gift, as the son's evidence lacked corroboration and contained inconsistencies.
The son was ordered to return the $90,000 to the estate.
