Court File and Parties

Citation: Torto v. Grayer, 2015 ONSC 3168 Court File No.: DC-13-61 Date: 2015-05-20 Superior Court of Justice - Ontario

Re: Urbano Torto and Anna Torto, Plaintiff (Appellant) And: Dennis Grayer, Defendant (Respondent)

Before: Carey J.

Counsel: Craig J. Allen, Counsel, for the Appellant B. Clint Cadden, Counsel, for the Respondent

Heard: Written Submissions

Costs Endorsement

[1] The plaintiff/appellant was successful on appeal to this court. They rely on a Small Claims Court Rule 14 offer and s. 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43. They seek trial costs of 15 percent of the award, doubled for the defendant’s failure to accept the offer pursuant to r. 14.07(1). In addition, costs of the appeal are sought fixed at $6,712.15. In total, the plaintiff seeks costs of $11,727.

[2] The defendant points out that the plaintiff was represented by a paralegal at trial, that there is no Bill of Costs for trial of appeal and that 15 percent of the claim is the maximum allowed for trial costs in the Small Claims Court.

Trial Costs

[3] Rule 19:04 provides that a successful party represented by a lawyer, student-at-law or paralegal is entitled to “a reasonable representation fee at trial”. Prior to its amendment in 2006 the section provided for a $300 daily limit on fees.

[4] The defendant suggests that an appropriate starting point for fees for the paralegal representation is 7 percent of the ultimate damage award with doubling under r. 14.07(1) not exceeding $2,258.60.

[5] That submission is persuasive in all of the circumstances here and those will be the trial costs.

Appeal Costs

[6] In terms of the appellate costs, in my view it is important that the spirit of proportional fees as reflected by the 15 percent limit in s. 29 of the CJA be carried through to the appellate process. The Ontario Court of Appeal decisions in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, 188 O.A.C. 201 (ONCA) and Moon v. Sher (2004), 2004 39005 (ON CA), 192 O.A.C. 222, 246 D.L.R. (4th) 440 (ONCA) instructs courts to balance the indemnity principle with the fundamental objective of access to justice. Rule 1.04(1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires courts to put emphasis on proportionality in their orders.

[7] This appeal was limited to the issue of damages and was not time consuming. Cost awards in the Ontario Court of Appeal in civil appeals typically are between $5,000 to $7,500 for more complex appeals. I am persuaded that appropriate balancing of the principles results in costs fixed at $2,500 with disbursements for perfecting the appeal and trial transcripts fixed at $1,337.30 plus GST of $173.85.

[8] Order accordingly. Trial costs fixed at $2,258.60. Costs of appeal fixed at $2,500 plus disbursements of $1,501.15.

Original signed “Carey J.”

Thomas J. Carey Justice

Date: May 20, 2015