Fisher v. Clausen, 2014 ONSC 885

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

1On 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.

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

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

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

5On 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."

6I 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.

7In 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.

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

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

10In 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.