Court File and Parties

CITATION: Fisher v. Clausen, 2014 ONSC 885

DIVISIONAL COURT FILE NO.: DC-13-08-00

SMALL CLAIMS COURT FILE NO.: SC-12-1159-00

DATE: 20140206

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Robert Grant Fisher, Respondent/Plaintiff

AND:

Benny Clausen, Appellant/Defendant

BEFORE: D. L. Edwards J.

COUNSEL: R.G. Fisher, In Person

R. Regan, for the Appellant/Defendant

COSTS ENDORSEMENT

[1] On December 11, 2013 I granted the appellant's appeal of the judgment of Deputy Justice M.S. Malicki dated December 11, 2012 and ordered that the matter be remitted back to Brampton Small Claims Court for a new trial.

[2] I directed that the appellant provide written costs submissions within 14 days and the respondent to provide his response within seven days thereafter.

[3] On December 24, 2013 the appellant's costs submission was received. No cost submission was received from the respondent.

[4] On January 16, 2014 I wrote to the respondent allowing him until January 21, 2014 to submit his costs submission.

[5] On January 21, 2014 my judicial assistant received an e-mail from the respondent in which he stated that his costs submission was: "to all services rendered by J. Paul Bannon, Barrister & Solicitor on my behalf in this regard, including reviewing appeal materials and transcript and discussion; My total costs: $395.50."

[6] I have reviewed the appellant's costs submission in which he seeks costs in the amount of $3,329.35. The appellant is entitled to costs. The question is the quantum.

[7] In his submissions, the appellant states that as he was “successful in appealing the judgment; therefore the fees on the appeal are reasonable”; the issues were fairly straightforward; and the issue was of importance to the appellant as he had been found liable for a $10,000 judgment.

[8] I agree that the matter was relatively straightforward and the appeal turned upon a basic legal concept.

[9] In determining costs a primary consideration for me is proportionality. The costs claimed exceed 30% of the judgment in issue.

[10] In the circumstances, I am satisfied that the costs claimed exceed the proportionality principle, and I award costs in favour of the appellant in the amount of $2,000, fixed inclusive of H.S.T.

Dated: February 6, 2014

D. L. Edwards J.