Court File and Parties

CITATION: Hasselsjo v. CBI Home Health Group, 2013 ONSC 2684

COURT FILE NO.: DC-13-432-ML

DATE: 2013-05-09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Songja Hasselsjo, Appellant

AND: CBI Home Health Care, CBI CanCare Health Services and Sandra Bryce, Respondents

BEFORE: The Honourable Mr. Justice Robert J. Nightingale

COUNSEL: Songja Hasselsjo – Self Represented L. Dickson, Counsel, for the Respondents

HEARD: April 5, 2013

Endorsement

[1] This is an Application by the Appellant for leave to appeal the decision of Deputy Judge Bordonaro dated January 21, 2013 wherein he ordered that the Appellant pay the Respondents’ costs of these two actions which were consolidated and then dismissed by him at a settlement conference.

[2] The Appellant commenced these two separate claims against the Respondents claiming $25,000 in damages in each claim. At the settlement conference, the Deputy Judge consolidated the two claims finding that they were duplicate claims against the same Respondents and that the Appellant was splitting her claims contrary to Rule 6.02 of the Small Claims Court Rules.

[3] The Deputy Judge then found that as the consolidated claim exceeded the monetary jurisdiction of this court, the Small Claims Court had no jurisdiction pursuant to Section 23 (1) of the Courts of Justice Act. He accordingly dismissed the consolidated claim.

[4] The Appellant has not appealed that Order consolidating the two claims and dismissing the consolidated claim and she advised the Court that she has since commenced an action in the Superior Court of Justice for the same relief against the same Defendants.

[5] The Deputy Judge then made an Order that the Appellant pay the Respondents’ costs in the amount of $1000 with a brief endorsement “which I consider special circumstances at $1000” and then referred to Rule 13.05 [1] [2] of the Small Claims Court Rules which latter subrule included his authority to make an order regarding costs after dismissing the action.

[6] It is this Order for costs that is the subject matter of the Appellant’s application for leave to appeal under Section 133 of the Courts of Justice Act.

[7] The Appellant provided an affidavit of Tony Hasselsjo which unfortunately was not very clear but which appears to suggest that the Deputy Judge may have made an order for $1000 in costs without asking for submissions from the Appellant after he dismissed the claim.

[8] The Respondents filed an affidavit from Jennifer Taylor, the lawyer for the Respondents who attended on the settlement conference. That affidavit is very clear and concise that the Deputy Judge invited her to make submissions with respect to costs and she submitted that $1000 was a reasonable amount for costs. The affidavit is also very clear that the Appellant then made very specific submissions to the Deputy Judge that she could not afford to pay $1000 in costs because she was “on an old-age pension”, was the victim of theft, and that her old age security benefits could not be garnisheed including her quoting case law that such benefits could not be garnisheed from a bank account.

[9] The affidavit states that the Deputy Judge then commented that the Appellant’s submissions had nothing to do with whether or not costs should be awarded and only dealt with whether or not a costs award could be enforced. He accordingly ordered that costs were payable to the Respondents in amount of $1000.

Analysis

[10] Leave to appeal a costs order should be sparingly granted and only if there has been an error in principle or if the costs award is clearly wrong. Moreover, the proposed appeal should raise an issue of some importance to the administration of justice that goes beyond the interests of the parties. Bougadis Chang LLP v. 1231238 Ontario Inc. 2012 ONSC 6409; Gale v Gale 2006 Carswell Ont 6263.

[11] The Deputy Judge on dismissing the action against the Respondents was certainly entitled to exercise his discretion to award the Respondents their costs of the two claims that had been consolidated. The Appellant has not established that the Deputy Judge’s award for costs of the actions against the Appellant was clearly wrong or that he made an error in principle by doing so.

[12] In particular, the Appellant has not established that she was not given the opportunity to make submissions on costs before the award was made based on the evidence before me.

[13] With respect to the quantum of the costs, it must be remembered that the Deputy Judge in effect was dealing with the costs incurred by the Respondents for the two separate claims. The amount awarded was also inclusive of disbursements incurred by the Respondents for filing the Defences in both actions of $40 each and also inclusive of HST on the legal fees.

[14] The Appellant claimed $25,000 in each claim and as the costs award did not exceed 15% of the amount claimed, there is no suggestion that his award of costs did not comply with Section 29 of the Courts of Justice Act.

[15] Although the Deputy Judge did not provide a breakdown for his order for costs of $1000, practically speaking, an approximate breakdown would be in the area of $400 for fees plus HST and disbursements for each of the two actions. Those amounts are not unreasonably high in the circumstances. Although it may have been helpful if the Deputy Judge had provided a breakdown of his costs award, the Appellant has not established that his decision was so clearly wrong that it amounted to an injustice or that he exercised his discretion on costs based on improper principles.

[16] Accordingly, it is not appropriate that I interfere with his exercise of his discretion regarding his award of costs based on the circumstances of this case.

[17] The Appellant’s application for leave to appeal is hereby dismissed.

[18] The Respondents shall have seven days within which to make written submissions on costs of this appeal of no longer than two pages in length with the Appellant to have seven days thereafter to similarly provide her response.

The Honourable Mr. Justice R. J. Nightingale

Date: May 9, 2013