CITATION: Frith v. Cable Bridge Enterprises Limited, 2013 ONSC 6916

COURT FILE NO.: CV-12-0502

DATE: 20131106

ONTARIO

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNE MARIE FRITH

Plaintiff(Respondent)

– and –

CABLE BRIDGE ENTERPRISES LIMITED A.K.A. ONTARIO CORP NUMBER 1147636, LUIGI BIFFIS A.K.A. LOU BIFFIS, ROCCO LOMBARDI, ASSUNTA BIFFIS A.K.A. SUE BIFFIS, PETER BIFFIS, DINO BIFFIS AND SYLVIA BIFFIS

Defendants(Appellants)

Anne Marie Frith, Self-Represented Plaintiff (Respondent)

K.E. Kemp, for the Defendants(Appellants)

HEARD: By way of written submissions

COSTS ENDORSEMENT

DiTOMASO J.

THE PROCEEDINGS

[1] The appellants (“Cable Bridge”) were entirely successful on the appeal from the decision of Deputy Judge A. Fisher dated March 20, 2012. The appeal was allowed and the decision of the trial judge permitting Ms. Frith to proceed with her Small Claims Court action was set aside. It was ordered that Ms. Frith be estopped from continuing with her Small Claims Court action by virtue of the provisions of section 97(1) and 97(4) of the Employment Standards Act, S.O. 2000 c.41, as amended.

[2] The parties agreed that costs would be dealt with by way of written submissions. I have received and reviewed the written costs submissions from the parties.

ENTITLEMENT

[3] As Cable Bridge was the successful party on the appeal, Cable Bridge is entitled to costs of the appeal and costs before the Small Claims Court on a partial indemnity scale. (see Reasons for Decision dated October 15, 2013)

QUANTUM

[4] In respect of proceedings before the Small Claims Court, Cable Bridge claims the sum of $3,000 plus disbursements and HST. This amount represents approximately 12.66% of the total amount claimed by Ms. Frith, namely, $23,691.16 plus pre-judgment interest. Cable Bridge relies upon section 29 of the Courts of Justice Act, R.S.O. 1990 c.C.43, as amended which limits an award of costs in the Small Claims Court to 15% of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interest of justice to penalize a party or party’s representative for unreasonable behaviour in the proceeding.

[5] The extended work undertaken on behalf of Cable Bridge in the Small Claims Court action is specifically outlined on the Bill of Costs and Costs Outline provided. The action included the need for attendances at a settlement conference, a motion brought by the plaintiff for substituted service (which was attended by an agent on behalf of the defendant’s and which motion was dismissed) and the preparation for and attendance at a full-day trial of an issue. It is the Ruling of Deputy Judge Fisher that was appealed successfully by Cable Bridge.

[6] I have considered the costs claimed in respect of the Small Claims Court action. I consider the sum of $1,500 inclusive of fees and HST to be fair, reasonable and proportional in all the circumstances.

[7] In respect of costs claimed on the appeal, Cable Bridge seeks fees of $8,000 plus HST. I have considered all the circumstances surrounding the appeal and I would fix costs of the appeal in the amount of $3,500 inclusive of HST.

[8] I would award total fees in the amount of $5,000 in respect of proceedings before the Small Claims Court and on the appeal.

[9] As for disbursements, I have considered the disbursements claimed regarding proceedings before the Small Claims Court and on the appeal claimed in the amount of $1,410.86. I have considered these disbursements and would allow same in full. Therefore, Cable Bridge is awarded the sum of $1,410.86 inclusive of HST for disbursements.

DISPOSITION

[10] Having considered the written submissions of Cable Bridge and Ms. Frith, total costs in the amount of $6,410.86 are awarded to the appellants payable by Ms. Frith.

DiTOMASO J.

Released: November 6, 2013