Ontario Superior Court of Justice

CITATION: Tersigni v. Georgevitch, 2015 ONSC 2533

NEWMARKET COURT FILE NO.: DC-13-540-00

DATE: 2015-04-17

BETWEEN:

PAUL J. TERSIGNI Plaintiff (Appellant)

– and –

DONALD R. GEORGEVITCH Defendant (Respondent)

COUNSEL:

J. Botelho, for the Plaintiff (Appellant)

J. Papazian, for the Defendant (Respondent)

HEARD: by written submissions

RULING ON COSTS

DOUGLAS J.

[1] The Appellant was successful on this appeal from the judgment of the Small Claims Court dated February 25, 2013.

[2] The hearing of this appeal required three separate court attendances, the first involving preparation for full argument but the presiding judge concluded that the matter required a long motion date and the matter was adjourned for trial scheduling court. The parties attended trial scheduling court and thereafter the hearing before me on October 31, 2014.

[3] In exercising discretion under s.131 of the Courts of Justice Act to award costs, pursuant to rule 57.01 the court may consider various factors including the principle of indemnity, the experience of the lawyer for the successful party as well as the rates charged and the hours spent by that lawyer, the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the appeal, the amount claimed in the proceeding, the complexity of the proceeding, the importance of the issues, amongst other factors.

[4] In assessing costs the overriding principle is what is fair and reasonable (see Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (Ont.C.A.) at para. 26).

[5] The Appellant seeks costs on a partial indemnity basis in the amount of $19,323.46 including disbursements and HST.

[6] The Respondent submits that costs in the amount of $5,000 is appropriate and refers in this regard to his own Costs Outline calculating partial indemnity costs including disbursements and HST in the amount of $10,469.67. The Respondent argues proportionality and notes that the Plaintiff’s claim is for damages in the amount of $25,000. The Respondent cites the case of R.M. v. M.Z. 2009 15147 (Div.Ct.) in which the Divisional Court heard an appeal from a final order of a Deputy Judge of the Small Claims Court. The claim was for $10,000. The Divisional Court considered the principle of proportionality and awarded costs of the appeal to the successful party in the amount of $3,500.

[7] In Mercedes Benz v. Zhang 2015 ONSC 986 the Divisional Court heard an appeal from a final order of a Deputy Judge of the Small Claims Court. The claim was for approximately $18,000. The Divisional Court considered the principle of proportionality and awarded costs of the appeal to the successful party in the amount of $5,000, compared to a claim for costs in the amount of $6,000.

[8] I have reviewed the Appellant’s Bill of Costs. The subject matter of the appeal was, in my view, of a complexity in the moderate to high range, necessitating some extensive research. Having said that, the expenditure of time summarized in the Appellant’s Bill of Costs appears somewhat inconsistent with what an unsuccessful party might reasonably expect in relation to this appeal.

[9] The costs awarded by the Divisional Court in the cases cited above represent approximately one-third of the amount claimed.

[10] The amount claimed in this proceeding is $25,000. The principle of proportionality must be reflected in my decision on costs.

[11] I therefore find the Appellant is entitled to costs fixed in the amount of $8,000 including disbursements and HST.

DOUGLAS J.

Released: April 17, 2015