DIVISIONAL COURT FILE NO.: 500-14
SMALL CLAIMS COURT FILE NO.: SC-13-26867
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: CLAYTON RUBY Appellant (Defendant)
- AND -
KIMBERLY WAKE Respondent (Plaintiff)
BEFORE: THEN J.
COUNSEL: Nader R. Hasan for the Appellant (Defendant) Kimberly Wake in person
COSTS ENDORSEMENT
1On November 28, 2014 the appellant sought an extension of time to serve and file its notice of appeal from the decision of the deputy judge of the Small Claims Court awarding the respondent, Ms. Wake $10,000 and costs of $175 with interest pursuant to the Courts of Justice Act after an all day trial.
2In my endorsement I held that the four factors warranting an extension of time were satisfied. Accordingly, it was ordered that the appellant be permitted to file its notice of appeal within 10 days of the court’s order and be permitted to perfect the appeal within 30 days of the court’s order.
3It was also ordered that if the parties cannot agree, the parties may make brief submissions as to costs within 30 days of the receipt of the decision of the court.
4While the appellant complied with the order of the court in all respects the respondent did not file costs submissions. Unfortunately, the appellant’s costs submissions were misplaced and no costs order was issued.
5The appeal was heard on August 5, 2015 by Perell J. who issued a written judgment in favour of the respondent whereby he upheld the original judgment of the Deputy Judge and awarded her costs of the appeal in the amount of $1,500 as requested by the respondent.
6The issue of the outstanding costs order pertaining to the extension of time to appeal was not brought to the attention of Justice Perell by either the appellant or the respondent.
7When the respondent sought payment of the $1,500 costs order issued by Perell J. on appeal, the appellant took the position that the matter of costs pertaining to the motion for extension of time should be resolved first or alternatively that the issue of costs for both the appeal and the motion to extend be negotiated by the parties.
8The respondent took the position that these were separate matters and should therefore be dealt with separately.
9The respondent approached this court with a request to permit the late filing of her costs submissions on the motion to extend time. The appellant has consented provided that the respondent be given an opportunity to clarify the factual issues surrounding her failure to make submissions as to costs with respect to the motion for an extension of time.
10In the costs submissions that have now been filed the respondent submits that her failure to file costs submission as specified in the decision of the court on November 28, 2014 was due to oversight and was not intentional. She notes also that she did not receive a copy of the decision by e-mail because the decision was sent to an incorrect e-mail address.
11The appellant submits the order of the court was issued on December 19, 2014 notwithstanding the non-attendance of the respondent. The appellant submits that the respondent had been served with a draft order and the order issued on December 19, 2014 and accordingly should have been aware of her opportunity to make costs submissions.
12The appellant’s costs outline, which was provided to the respondent, sought $2,725 plus HST for legal fees and disbursements in the amount of $61.48 plus HST on a partial indemnity basis with respect to the motion. The fees represent 10 hours claimed by Mr. Hasan for preparation and argument of the motion as well as 10 hours devoted by a law clerk with respect to the motion. The appellant submits that the motion was made necessary by the recalcitrance of the respondent to facilitate the service of the notice of motion.
13The respondent submits that she is not to blame for the late filing of the motion to extend time to appeal. The respondent further submits that the amount claimed is in any event excessive given she is a self represented litigant in Small Claims Court in circumstances where a claim for $2,700 costs with respect to the motion to extend time to appeal is entirely disproportionate to the $1,500 awarded her upon her success on the appeal and the $175 awarded her upon success at trial. Finally she submits that because costs were not assessed prior to the appeal she has lost the opportunity to obtain an order from the judge on appeal to return whatever costs may have been assessed against her on the motion to extend time to appeal.
14In my view the claim for an amount in excess of $2,700 for costs on the motion to extend is excessive given the factors outlined in Rule 57.01. The amount at issue is relatively small and the proceeding was devoid of complexity. The time allotted to the matter was in my view excessive.
15On the issue as to whether the motion was necessary, I accept that the respondent was not entirely cooperative in accepting service of the notice of appeal. That said, the court has found on this record that she did not evade service. Furthermore, it must be noted that the appellant was assessed $175 costs at trial and $1,500 on appeal. In my view, these relatively modest amounts more accurately reflect the expectation of the parties with respect to the issue of costs in respect of Small Claims matters and are clearly more conducive to furthering the goals of access to justice in that court. In my view, the claim for $2,700 is vastly disproportionate in the circumstances of this case. Further, given that the judge on appeal found no merit to the grounds of appeal it is entirely possible that he would have reimbursed any costs award against the respondent given by this court on the motion to extend the time to appeal.
16In all of the circumstances, it is my view that it is fair and reasonable on the motion to extend the time to appeal to award to the appellant costs in the amount of $500 all inclusive payable in 30 days.
THEN J.
Date: September 18, 2015