CITATION: Fraser v. Coutu, 2012 ONSC 3997

COURT FILE NO.: DC10-0000847

DATE: 20120705

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AL FRASER aka RANDOLPH ALLAN FRASER

William R. Ramsay, for the Appellant

Appellant

• and -

DOREEN COUTU

Robert A. Dinnen, for the Respondent

Respondent

HEARD: July 3, 2012

D E C I S I O N O N C O S T S

WILCOX, J.

[1] BACKGROUND

[2] The Respondent moves for an order that the Appellant pay the Respondent’s costs of the appeal in this matter and of this motion, both fixed in the sum of $12,500.

[3] The Respondent successfully sued the Appellant in Small Claims Court and was awarded the maximum available at the time of $10,000 plus $500 in costs. Both parties were self-represented at trial. I subsequently dismissed the Defendant’s appeal of that judgment. Costs of the appeal were not addressed at that time. Mr. Dinnen’s letter of February 22, 2011 to the court, filed as Exhibit C to the affidavit of Deanna Lounsbury, sworn June 12, 2012 seeking to address costs, was copied to, but not received by, Mr. Ramsay. Neither counsel received the court’s reply inviting submissions. These are but some of the unfortunate circumstances that have contributed to the length and expense of this case, which are out of proportion to its value.

[4] Both parties were represented on the appeal, the Appellant by Mr. William R. Ramsay and the Respondent by Mr. R. A. Dinnen. For clarity, I note that Doreen Coutu was the Plaintiff in the Small Claims Court action and was the Respondent in the appeal, represented there by Mr. Dinnen. Al Fraser, aka Randolph Allan Fraser, was the Defendant in the Small Claims Court action, and the Appellant in the appeal where he was represented by Mr. Ramsay.

[5] Similarly, the Respondent’s claim for costs seems out of proportion to the value of the case. While it is true that the same issues could be found in a Small Claims Court case as in a case worth a million dollars, surely there must be some proportionality between the value of the case and the amount of effort that goes into it. The question must be asked, “What would a litigant expect to pay to resolve a disagreement over a claim worth $10,000?” There must be some cost benefit analysis to determine what time and resources might reasonably be spent on a case. This would apply to an appeal as well as to a trial de novo.

[6] S. 131(1) of the Courts of Justice Act leaves the costs incidental to a proceeding or a step in a proceeding in the discretion of the court, subject to the provisions of an Act or the rules of the court.

[7] Rule 19 of the Small Claims Court Rules deals with costs. Rule 19.02 says that, “Any power under this rule to award costs is subject to s. 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded.”

[8] S. 29 of the Courts of Justice Act states as follows:

An award of costs in a Small Claims Court, other than disbursements, shall not exceed 15 percent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.

[9] That would apply to trial proceedings in the Small Claims Court. Without deciding whether it is directly applicable to the appeal of Small Claims Court matters, it provides guidance in the approach to take in determining costs in an appeal.

[10] Rule 57 of the Rules of Civil Procedure sets out some general principles regarding the awarding of costs and lists the number of factors to be taken into account. Among these are the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed, and the amounts claimed and recovered in the proceeding.

[11] Taking the above into account, I would fix costs of the appeal and this motion at $2,500, payable by the Appellant to the Respondent within 30 days, together with any applicable taxes.

Justice J. A. S. Wilcox

Released: 20120705