Court File and Parties

Citation: Hydro One Networks Inc. v. Yakeley, 2010 ONSC 6051 Court File No.: DC-08-90890 Date: 2010-11-03 Superior Court of Justice - Ontario

Re: Hydro One Networks Inc. (Appellant) And: Paul Yakeley and Jo-Anne Yakeley, (Defendants Respondents)

Before: The Hon. Mr. Justice G.M. Mulligan

Counsel: A.M. Tomasovic, Counsel, for the Appellant T.A. Pochmurski, Counsel, for the Respondents

Heard: by written submissions

Endorsement Re Costs

[1] The appellant Hydro One Networks Inc. brought an appeal of a Small Claims Court decision. The appeal was heard on August 25, 2010. Hydro One was unsuccessful and in my ruling I invited both parties to make submissions as to costs. The appellant and the respondent have now provided written cost submissions. This is my ruling with respect to costs.

[2] The respondents Paul Yakeley and Jo-Anne Yakeley seek substantial indemnity costs of $7,611.62 plus disbursements of $183.15 or in the alternative partial indemnity costs of $4,593.75 plus disbursements of $183.15. The respondents further submit that they made a reasonable offer to settle, were forced to hire counsel with respect to this Small Claims Court appeal and further submit that the time spent and rates charged are accurate and reasonable.

[3] The appellant concedes that the respondent is entitled to costs but that those costs should be fixed in the amount of $4,500. As the appellant submitted in its submissions:

The appellant’s submission in terms of a reasonable award of costs in the circumstances is $4,500 which reflects the success of the respondent, the factors under Rule 57, the complexity of the appeal and the reasonable expectation of the appellant given the quantum at stake and the nature of the issues.

[4] In the Small Claims Court action below the appellant sought the recovery of the sum of $8,763.30. It was unsuccessful at trial and brought the matter by way of appeal to the Divisional Court. The respondent was self-represented at the Small Claim Court trial but retained counsel to respond to the Divisional Court appeal. In my view, retaining counsel to respond to a Small Claims Court appeal was both necessary and desirable. The procedures in Small Claims Court are aimed at assisting parties who are self-represented. The Ministry of the Attorney General provides self-help guides as well as forms that are easily accessible for parties who wish to represent themselves. They reflect the philosophy that the Small Claims Court is “a people’s court”. The same accessibility to guidebooks, forms and procedures is not as readily available for lay persons when dealing with Divisional Court matters.

[5] It is well settled that section 131 of the Courts of Justice Act R.S.O. 1990 c.C.43 provides considerable judicial discretion on the issue of fixing of costs. Rule 57.01 of the Rules of Civil Procedure sets out various factors that the court can consider in exercising this discretion including: the principle of indemnity, the amount of costs an unsuccessful party would expect to pay, the complexity of the proceeding and the importance of the issues. One of the overriding principles to emerge from judicial interpretation of the rules is the overriding principle of reasonableness. See Clarington (Municipality) v. Blue Circle Canada Inc. 2009 ONCA 722, [2009] O.J. No. 4236 at para. 52.

[6] The reasonableness principle indicates that courts are not necessarily required to reimburse a litigant for every dollar spent on legal fees. With respect to sums within the limit of Small Claims Court jurisdiction the issue of proportionality also comes also into play.

[7] After considering all of the factors including the quantum at issue I am satisfied that costs ought to be fixed at $5,000 including fees, disbursements and HST payable by the appellant to the respondent forthwith.

MULLIGAN, J.

Date: November 3, 2010