CITATION: Transport Training Centres of Canada v. Wilson, 2010 ONSC 2714
COURT FILE NO.: 07-DV-1307
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
BETWEEN:
Transport Training Centres of Canada Appellant
– and –
Delores Wilson Respondent
Daniel C. Sirois, for the Appellant
Richard Bourdeau, for the Respondent
costs endorsement
Ratushny J.
[1] The issue of costs in this case arises out of a successful appeal from a Deputy Justice’s decision in Small Claims Court. The successful appellant had been the defendant at trial. The respondent, the plaintiff at trial, had claimed general damages of $1,000 and punitive damages of $7,000. On appeal, the respondent has had her award for general damages of $7,000 plus costs of $1,500, set aside. The appellant has been awarded its costs at trial and on this appeal.
[2] Submissions as to the quantum of costs have been received from both parties.
[3] The appellant requests costs fixed in the amount of $23,800 and submits that consideration be given to its offer of settlement in the appeal so as to allow for substantial indemnity costs thereafter. The appellant also includes in its costs requests the costs for trial and for two motions occurring prior to the appeal hearing, arising out of the unavailability of certified transcripts.
[4] Dealing first with the costs of the motions, as I understand these matters, the appellant’s costs have already been dealt with. Forget J., in his Order dated June 9, 2008, allowed no costs to either party on the motion and cross-motion before him. In addition, the appellant informs me that costs of $4,200 have been obtained from the Crown for the delay in providing the appeal transcripts.
[5] With respect to the appellant’s offer to settle the appeal and although neither party has raised this issue, I do not understand that Rule 49 is applicable to appellants and respondents but rather, only to plaintiffs, defendants, applicants and respondents (Rules 49.01, 49.02, 49.14).
[6] Even if this were to be incorrect, however, in exercising my discretion under s. 131 of the Courts of Justice Act and under Rule 57.01, I would not regard the appellant’s offer to settle the appeal as justifying an award of substantial indemnity costs.
[7] In my view, the principal factor influencing the quantum of costs is that this action arose in Small Claims Court and involved a damages award of $7,000. That, of course, is the factor of “the amount claimed and the amount recovered in the proceeding” referred to in Rule 57.01(1)(a).
[8] While it was the appellant’s right to appeal and it succeeded on grounds of errors of law on its appeal, in my view it is disproportionate to the original amounts in issue (Rule 57.01(1)(a)) and the degree of complexity in the proceeding (Rule 57.01(1)(c)) to claim, as the appellant has, a costs amount over three times greater than the $7,000 originally awarded.
Trial Costs
[9] Instead, I award costs for the trial according to s. 29 of the Courts of Justice Act and Rule 19.04(2) of the Small Claims Court Rules, as interpreted in Bird v. Ireland (2005), 205 O.A.C. 1 (O.S.C.D.C.) at paragraph 41, and referred to at paragraphs 13, 14 and 15 of my Reasons for Judgment in this matter released April 13, 2010.
[10] I also consider, as a relevant factor, that the appellant/defendant at trial was represented by its President.
[11] It is based on all of these considerations that I fix trial costs at $500 all inclusive.
Appeal Costs
[12] In addition, I fix the costs of the appeal at $5,000 all inclusive, as representing an amount that is proportional in all of the circumstances and that the respondent could reasonably have expected to pay in the event she was unsuccessful.
Costs Order
[13] I order, therefore, the respondent to pay to the appellant for trial and appeal costs, the total amount of $5,500. In light of her difficult financial circumstances, I allow her 90 days from the release date of this Endorsement to pay this sum to the appellant.
The Hon. Madam Justice L.D. Ratushny
Released: May 11, 2010.
CITATION: Transport Training Centres of Canada v. Wilson, 2010 ONSC 2714
COURT FILE NO.: 07-DV-1307
ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court)
BETWEEN:
TRANSPORT TRAINING CENTRES OF CANADA Appellant
-and-
DELORES WILSON Respondent
costs endorsement
Ratushny J.
Released: May 11, 2010