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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).
Municipality's appeal dismissed; trial judge reasonably relied on viva voce evidence over business records.
The municipality appealed a Small Claims Court judgment finding it liable in negligence for $3,026.48 in damages caused to the respondents' vehicle by a pothole.
The trial judge accepted the respondents' viva voce evidence that no warning flasher was present at the time of the accident, rejecting the municipality's reliance on business records suggesting otherwise.
The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings, confirming the municipality breached its duty to warn, and holding that the trial judge's reasons were sufficient.
