CITATION: 1489018 Ontario Ltd. v. Kaur, 2015 ONSC 1118
COURT FILE NO.: DC-14-0006-00
DATE: 2015 02 20
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justice M.G. Emery
BETWEEN:
1489018 ONTARIO LTD., o/a NEW AGE RECOVERY CENTRE LTD.
Justin S. Linden and R. Radanski, for the Appellant/Plaintiff
Appellant/Plaintiff
- and -
GURDIP KAUR, STATE FARM CANADA AKA STATE FARM INSURANCE COMPANIES, AKA STATE FARM MUTUAL AUTOMOBILE INSURANCE
Patrick Di Monte, for the Respondent/Defendants
Respondent/Defendants
COSTS DECISION
[1] I thank counsel for their thoughtful submissions on costs.
[2] The appellant argues that the respondent should be refused her costs of the appeal because the funds she retained were “unbegotten gains”. Counsel for the appellant also submits there were reasonable grounds of appeal based on the belief there was a contract that determined the starting date for the limitation period to run. This argument was the primary ground for appeal advanced to show that the deputy judge had erred when he dismissed the claim.
[3] The respondent seeks her costs on a substantial indemnity basis for having the appeal dismissed. The respondent argues that the appeal should never have been brought.
[4] There is no reason to depart from the general rule that the respondent should have her costs as the successful party. She was successful in establishing there was no contract that determined the start of the limitation period, and that the deputy judge did not err in fact or in law by applying the discoverability principle. A successful respondent should not be deprived of costs just because an appellant holds the belief that the grounds of appeal are reasonable, or that those grounds have a reasonable prospect of success.
[5] It should not be forgotten that the appellant’s claim dismissed by the deputy judge could have been commenced within the applicable two year period. This was not a case involving a short amount of time prescribed by statute to give notice or to start a claim. The deputy judge expressed his view that the appellant knew or should have known when the two years in which to bring an action had begun, and I found that he committed no error by making that finding of fact.
[6] The respondent requests costs on a substantial indemnity basis because her counsel had written a letter dated December 4, 2014 to ask the appellant to abandon the appeal on humanitarian grounds because of her husband’s recent death. It is suggested that it is open for the court to consider this letter to be an offer to settle. The letter did not address the merits of the appeal. In my view, the letter cannot be considered an offer to settle as the basis for me to consider whether to award costs at a higher level. Therefore, costs are awarded to the respondent on a partial indemnity basis only, subject to proportionality considerations.
[7] The real question is what amount is proportionate for the costs claimed by the respondent. The deputy judge dismissed the claim made by the appellant for fees billed by the appellant for rehabilitation services totaling $4,931.92. The respondent seeks $14,130.65 for costs on a substantial indemnity basis, and $10,961 for partial indemnity costs.
[8] I am directed to consider the factors under Rule 57.01(1) when exercising any discretion on awarding costs. However, when exercising my discretion under Rule 57.01 I must be guided by Rule 1.04(1.1) to ensure that costs, like any other orders, are given on a proportionate basis:
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.
[9] The appeal was of significant importance to each of the parties. The appellant was seeking to overturn the dismissal of the Small Claim Court to pursue a claim for unpaid fees on the merits. The respondent is described in the letter from her lawyer dated December 4, 2014 as a lady of modest means who had recently lost her husband.
[10] The issues were moderately complex given the interplay between the standard of appellate review, contract law, and the principles under the Limitations Act 2002. If costs were awarded solely on the basis of the amount involved, that award would be far less than the amount I would consider just for the respondent to receive and what the appellant could reasonably expect to pay as the unsuccessful party: Boucher et al. v. Public Accountants Council for the Province of Ontario et al., 2004 14579 (ON CA), [2004] 71 O.R. (3d) 291. However, owing to the importance of the appeal to the respondent and the moderate complexity of the issues I am to take into account under Rule 1.04(1.1) and Rule 57.01(1), I would be within the bounds of my discretion to make a costs order to recognize the purpose of costs is to at least partially indemnify the successful party.
[11] Under all of the circumstances, I conclude that costs fixed in the amount of $5,000 all-inclusive would be fair and reasonable to award to the respondent. To award any more would be disproportionate to the amount involved. To award any less would deprive the respondent too much of the actual legal expense to oppose the appeal. A costs award equal to the amount involved seems proportionate and fair.
[12] Order to go accordingly.
Emery J
DATE: February 20, 2015
CITATION: 1489018 Ontario Ltd. v. Kaur, 2015 ONSC 1118
COURT FILE NO.: DC-14-0006-00
DATE: 2015 02 20
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
1489018 ONTARIO LTD., o/a NEW AGE RECOVERY CENTRE LTD.
Appellant/Plaintiff
- and -
GURDIP KAUR, STATE FARM CANADA AKA STATE FARM INSURANCE COMPANIES, AKA STATE FARM MUTUAL AUTOMOBILE INSURANCE
Respondent/Defendants
COSTS DECISION
EMERY J
Released: February 20, 2015