SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Polito v. 1201553 Ontario Ltd. o/a Tri-Bear Construction, 1201553 Ontario Ltd. o/a Blue Door Remodelling and Construction Co. and William Mandel also known as Bill Mandel
BEFORE: The Honourable Mr. Justice R.D. Reilly
COUNSEL: Jennifer Breithaupt, for the plaintiff/respondent
Richard M. Van Buskirk, for the defendants/appellants
RULING AS TO COSTS
1The plaintiff/respondent was successful on the appeal. Counsel on his behalf claims costs of the appeal based on a partial indemnity rate of $5,542.99. Counsel for the defendants submits that this claim for costs is excessive, taking into account the principles guiding the court in directing costs set out in rule 57.01. I agree.
2This was an appeal from the Small Claims Court. Total damages claimed at trial by the successful plaintiff amounted to $4,000. The decision of the trial judge was largely fact driven, based on the credibility of the witnesses. The task of this court on appeal was not to permit a “retrial” of the case, but to simply determine whether the trial judge made an error in law that impacted on his decision or made an overriding and palpable error on the facts. Otherwise expressed, this appeal court’s task was relatively simple and straightforward and the appeal did not require extensive preparation by counsel.
3I am mindful of the factors that must guide this court in directing an award of costs set out in Rule 57.01(1) of the Rules of Civil Procedure. I make particular note of sub rule (1)(0.a), the principle of indemnity, sub rule 1(0.b), the amount of costs an unsuccessful reasonable party could expect to pay for the appeal, sub rule (1)(a), the amount claimed and the amount recovered at trial, sub rule (1)(c), the complexity of the proceeding, and sub rule (1)(d), the importance of the issues. Taking all these factors into consideration in the circumstances of this case, I conclude that the plaintiff is entitled to an award of costs, but on a more modest scale than that sought by counsel on his behalf. I therefore direct that the defendants/appellants shall be jointly and severally liable to pay to the plaintiff/respondent costs set at $3,200, inclusive of disbursements and GST. Costs are payable forthwith.
4It is to be regretted that this litigation has been somewhat expensive for both the plaintiff and the defendants. The simple reality is that litigation is expensive and it almost always involves some unrecoverable costs. Though I am sure that both the plaintiff and the defendants felt that there was a principal at stake in pursuing this litigation, sometimes that principle must be weighed against the in expense of launching an action.
R.D. REILLY J.
DATE: July 30, 2008
COURT FILE NO.: DC1/07
DATE: 20080730
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Peter Polito v. 1201553 Ontario Ltd. o/a Tri-Bear Construction, 1201553 Ontario Ltd. o/a Blue Door Remodelling and Construction Co. and William Mandel also known as Bill Mandel
BEFORE: The Honourable Mr. Justice R.D. Reilly
COUNSEL: Jennifer Breithaupt, for the plaintiff/respondent
Richard M. Van Buskirk, for the defendants/appellants
RULING AS TO COSTS
REILLY J.
DATE: July 30, 2008