Court File and Parties

2014 ONSC 2938

COURT FILE NO.: 499/12

DATE: May 12, 2014

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Kamnik Electric Limited, Plaintiff, Respondent in the Appeal

AND:

Unique Homes Canada Limited and Alope Construction Inc., Defendants, Appellants

BEFORE: Kiteley J.

COUNSEL: Ms. Ulcar, agent for the Respondent

Amanda Carpenter, counsel for the Appellants

HEARD: May 12, 2014

ENDORSEMENT

[1] This is an appeal from the judgment at trial made by Deputy Judge Tait, dated September 13, 2012 in which he granted judgment in the amount of $21,953 and costs of $1275 along with interest pursuant to the Courts of Justice Act from November 2, 2010.

[2] The Appellants are in effect a general contractor. Kamnik is an electrical contractor who had done business with the Appellants over about 7 years before Kamnik agreed to do electrical work on a property that the Appellants were building from the ground up. While there were other issues at the trial, the only issue before this court was the finding that the Appellants were responsible for paying for certain extras.

[3] The Deputy Judge heard evidence on May 9, 2012 and on part of September 13, 2012. At paragraph 10, he made these findings:

Mr. Bakos, for the defendant, has referred to cases, one of them in the Superior Court of Ontario, which deal with entitlement to claims for extras. I do not feel that either of the cases which he cited are helpful to us in the factual circumstances that this case presents. Yes, it would have been prudent to have documentation, but the only person who knew that it was essential was the defendant and there is no evidence that it was passed on. The course of dealing between the parties clearly demonstrated that this kind of formality was not their normal practice as between themselves over the years. I cannot, therefore conclude that the plaintiff had to have approval or documentation with respect to every extra before it could be paid for them.

[4] Counsel for the Appellant does not challenge the finding of fact in the second last sentence. She takes the position that the final sentence constitutes a finding of law that is not correct. She argues that extras referred to in invoice 2115 ($2856) and in invoice 1834 ($10,767.75) should be deducted from the amount of the judgment, leaving a balance owing on the judgment to the Respondent in the amount of $8329.25.

[5] I do not agree that the final sentence constitutes a finding of law. As the detailed reasons for decision make clear, the Deputy Judge made findings of fact from which he drew the finding of mixed fact and law that in this case, neither approval nor documentation was required. The reasons provide ample justification for that finding. The Appellants have failed to demonstrate that the Deputy Judge made any palpable and overriding error. There is no basis upon which this court should intervene and reduce the judgment.

[6] Counsel for the Appellant had missed perfecting the appeal and it had been dismissed for delay. On January 21, 2014, Sachs J. made an order setting aside the dismissal and ordered the Respondent to pay costs in the amount of $1000. Those costs were not paid at the outset of the hearing of the appeal.

[7] On January 21, 2014, Sachs J. also heard the motion on behalf of the Appellant for leave for Ms. Ulcar to appear as agent for the Respondent as she had done at the trial. Sachs J. allowed that motion but did not grant the motion for security for costs. She made no order as to costs.

[8] Ms. Ulcar expected that they would have 30 days in which to make submissions as to costs so she has not come prepared. I am not prepared to adjourn the issue of costs.

[9] Ms. Ulcar tells me that she has spent about 200 hours and she takes the position that the “generally accepted rate” for self-represented persons ins $60.00 per hour. She incurred disbursements of $70 to have two affidavits sworn. She consulted with a lawyer for about one hour but did not receive an invoice, expecting that those services would be added to an account on another matter. She served an offer to settle.

[10] Ms. Carpenter confirmed that on May 1, 2014, the Respondent served an offer to settle by which the Appellant would be required to pay $20,000 by certified cheque before the commencement of the hearing of the appeal. Ms. Carpenter concedes that since the appeal was dismissed, the Respondent is entitled to costs. She agrees that the offer to settle is a relevant factor in the amount of costs. She does not accept 200 hours nor does she accept $60.00 per hour. In the costs outline which she prepared and on which she would have relied had she been successful, she asked for partial indemnity costs in the amount of $24,006 which reflects approximately 120 hours together with her appearance today. She suggested that 60 hours (or 50% of the time she spent) at $20 per hour (or $1200) might be fair. Ms. Carpenter also agreed that the costs I order for today should be set off against the outstanding costs referred to above.

[11] I agree with the approach to calculating the costs of a self-represented party in this appeal. However, I intend to augment it to reflect the reasonableness of the offer to settle made by the Respondent.

ORDER TO GO AS FOLLOWS:

[12] The appeal is dismissed.

[13] The Appellants shall pay to the Respondent disbursements in the amount of $75 and compensation for services rendered in connection with the appeal fixed in the amount of $2500.

[14] The costs ordered to be paid by Sachs J. by the Respondent shall be set off against the costs ordered in paragraph 13, leaving a balance owing by the Appellants to the Respondent in the amount of $1575.

Kiteley J.

Date: May 12, 2014