CITATION: Cleland Metal Products Ltd. v. Proctor, et al., 2016 ONSC 2277
COURT FILE NO.: 55938/15
DATE: 2016/04/11
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLELAND METAL PRODUCTS LTD.
R. Slingerland, for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
NEIL PROCTOR, 1540958 ONTARIO INC. O/A PREMIER FITNESS CLUBS
F. S. Turton, for the Defendants/Appellants
Defendants/Appellants
The Honourable Mr. Justice J.R. Henderson
COSTS ENDORSEMENT
[1] The personal defendant (hereinafter called “Proctor”) was successful on his appeal to this court from a decision of the Small Claims Court Deputy Judge. Proctor now asks for costs of the appeal, and further asks for costs orders with respect to other court appearances in this proceeding.
[2] The history of this proceeding is significant. The plaintiff brought this action against Proctor and the corporate defendant (hereinafter called “154”) for payment of a debt. In the first Small Claims Court trial, the plaintiff was successful against both Proctor and 154. The Deputy Judge fixed the costs of that trial at $2,000.00 plus disbursements payable by the defendants to the plaintiff.
[3] On an appeal to this court on behalf of both defendants, MacPherson J. set aside the judgment from the first Small Claims Court trial, and ordered a new trial. During the course of that appeal proceeding, the defendants/appellants brought a motion for an adjournment, which was contested by the plaintiff, but which was ultimately successful.
[4] MacPherson J. dealt with the costs of all of these matters at the conclusion of her decision on the appeal. She fixed the costs of the appeal at $3,000.00 and costs of the motion at $500.00 in favour of the defendants/appellants. Then, at para. 39, MacPherson J. wrote “...that payment of the costs of the first trial and payment of the costs of the appeal ($3,000.00) and the costs of the motion ($500.00) are left to the discretion of the judge hearing the new trial.”
[5] The matter then proceeded to the second Small Claims Court trial in which the Small Claims Court Deputy Judge again granted judgment in favour of the plaintiff against both defendants. The Deputy Judge did not specifically refer to any of the previous costs orders, but made an award of costs in the amount of $1,250.00, plus HST, payable by the defendants to the plaintiff.
[6] Thereafter, Proctor appealed the decision from the second Small Claims Court trial to this court. 154 did not appeal. Before the appeal was heard, the plaintiff brought an unsuccessful motion for security for costs. That motion was heard by Walters J. who dismissed the motion and ordered that costs were reserved to the judge hearing the appeal.
[7] Then, finally, the second appeal was heard. Pursuant to my written decision dated March 8, 2016, Proctor’s appeal was allowed, the judgment against Proctor was set aside, and the judgment in favour of the plaintiff against 154 was left intact.
[8] Counsel for Proctor now requests that I consider the issue of costs with respect to six different steps in this proceeding, namely, the two Small Claims Court trials, the two appeals to this court, and the two interlocutory motions in this court.
[9] Regarding the costs of the first trial, the Deputy Judge at the first trial awarded costs of $2,000.00 plus disbursements in favour of the plaintiff. On appeal, MacPherson J. set aside the judgment. Implicit in MacPherson J.’s decision is that the award of costs is also set aside. Then, MacPherson J. left the issue of costs of the first trial to the discretion of the Deputy Judge in the second trial. The Deputy Judge in the second trial ordered of costs in the amount of $1,250.00, plus HST, without specifically identifying the costs of the first trial, or the appeal proceedings.
[10] I have to assume that in making his costs decision, the second Deputy Judge took into account the fact that there had been an earlier trial, and an appeal in the Divisional Court. It can be inferred that the Deputy Judge declined to make an award of costs for the first Small Claims Court trial. I note that Proctor was self-represented at the first trial, and therefore the costs of the first trial would have been less significant than the costs of the second trial. For these reasons, I make no order as to the costs of the first trial.
[11] Regarding the costs of the first appeal and the motion to adjourn the first appeal, I accept that MacPherson J. has fixed those costs, subject to the discretion of the second Deputy Judge. The Deputy Judge did not make any change to the costs award made by MacPherson J. Further, a Deputy Judge does not have jurisdiction in any event to make any order regarding the costs of a Divisional Court proceeding. Accordingly, I hereby confirm that Proctor is entitled to costs of the first appeal fixed at $3,000.00 and costs of the adjournment motion fixed at $500.00.
[12] Regarding the motion for security for costs, I have taken into account the fact that Proctor successfully contested that motion, that Proctor has incurred legal fees for representation by a lawyer on that motion, and that Proctor has incurred some disbursements. I have also taken into account the fact that the motion was relatively straightforward, that the motion was dealt with expeditiously, and that the amount at stake was a fairly low amount. Therefore, I award costs of this motion fixed at $1,500.00 payable to Proctor by the plaintiff.
[13] With respect to the costs of the second appeal, I note that this appeal was not complex, and dealt with a very modest amount of money. I will follow the guideline set by MacPherson J. on the first appeal and award costs for the second appeal fixed at $3,000.00 payable to Proctor by the plaintiff.
[14] Finally, with respect to the costs of the second Small Claims Court trial, I will leave in place the award of costs of $1,250.00 plus HST payable by 154 to the plaintiff, but I will relieve Proctor of any obligation to pay that costs award to the plaintiff. Further, I order that the plaintiff pay costs to Proctor fixed at $700.00 for the second Small Claims Court trial.
[15] Accordingly, as between Proctor and the plaintiff, the following costs are payable by the plaintiff to Proctor:
Costs of the first Small Claims Court trial nil
Costs of the first appeal $3,000.00
Costs of the motion to adjourn $ 500.00
Costs of the second Small Claims Court trial $ 700.00
Costs of the motion for security for costs $1,500.00
Costs of the second appeal $3,000.00
Total $8,700.00
[16] Judgment accordingly.
Henderson J.
Released: April 11, 2016
CITATION: Cleland Metal Products Ltd. v. Proctor, et al., 2016 ONSC 2277
COURT FILE NO.: 55938/15
DATE: 2016/04/11
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLELAND METAL PRODUCTS LTD.
Plaintiff/Respondent
- and -
NEIL PROCTOR, 1540958 ONTARIO INC. O/A PREMIER FITNESS CLUBS
Defendants/Appellants
COSTS ENDORSEMENT
Henderson J.
Released: April 11, 2016