Court File and Parties

CITATION: Chavez and Toplar v. Ertan and Mehmet, 2014 ONSC 4267

DIVISIONAL COURT FILE NO.: DC-7-13

(Small Claims Court Claim No. SC-11-2125)

DATE: 2014-07-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Salvador Chavez, Blanca Chavez and Hasan Toplar, Plaintiffs (Respondents)

AND:

Yilmaz Ertan and Alkan Mehmet, Defendants (Appellant)

BEFORE: Justice D.J. Gordon

COUNSEL: J.E. Opolko, Counsel for the Plaintiffs (Respondents) F.A. Mendes, Counsel for the Defendant (Appellant), Alkan Mehmet No one appearing for Yilmaz Ertan

SUPPLEMENTARY ENDORSEMENT RE: costs

[1] In my reasons for decision, released May 23, 2014, I invited written submissions on the issue of costs.

[2] The appellant, Mr. Mehmet, was successful in his appeal of the judgment granted in the Small Claims Court. His counsel, Mr. Mendes, now seeks a partial indemnity cost award of $7,549.16, inclusive of HST and disbursements.

[3] On behalf of the respondents, Mr. Opolko does not oppose a cost award but, rather, suggests the amount sought is not proportional to the amount in dispute. He also requests the award only be made against Mr. Chavez and Ms. Chavez.

[4] The amount in dispute was $25,000. The evidentiary component of the case was not complex but was made problematic when Mr. Toplar ceased being a defendant and became a plaintiff. The facts of the case did not support the claim against Mr. Mehmet given the nature of the pleadings.

[5] Given Mr. Mehmet’s success on appeal and the circumstances noted above, there is a clear entitlement to partial indemnity costs. As Mr. Toplar was the cause of the difficult situation at trial, he must bear a responsibility for costs along with the other respondents.

[6] I have reviewed the bill of costs presented by Mr. Mendes. The fee component is $5,185. In my view, this amount is most reasonable and is proportionate. Costs of $4,000 were granted at trial, in favour of the respondents, and it is to be noted the appeal was of greater complexity given the issues of law and nature of the proceedings.

[7] The only challenged disbursement, as identified by Mr. Opolko, is the photocopy expense of $423.50. I do not consider that excessive given the documentary record presented on appeal.

[8] Accordingly, the appellant is awarded costs, on a partial indemnity basis, fixed in the amount of $7,549.16, inclusive of HST and disbursements, as against all respondents.

D.J. Gordon J.

Released: July 28, 2014