Citation and Parties

CITATION: 6157734 Canada Inc. v. Bluelime Enterprises Inc., 2016 ONSC 4881

DIVISIONAL COURT FILE NO.: 113/15

DATE: 20160729

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 6157734 CANADA Inc, Plaintiff/Appellant

AND:

BLUELIME ENTERPRISES INC., Defendant/Respondent

BEFORE: Thorburn J.

COUNSEL: Janet Lunau and Malik Martin, for the Plaintiff/Appellant

Arnold H. Zweig, for the Defendant/Respondent

HEARD: In writing

costs ENDORSEMENT

The Issue

[1] The Plaintiff/Appellant, 6157734 Canada Inc., sought to appeal the judgment of Deputy Judge Prattas of the Ontario Small Claims Court. Deputy Judge Prattas of the Small Claims Court dismissed the Appellant’s claim for unpaid fees and expenses.

[2] The appeal was dismissed by me on the basis that:

a. the trial judge correctly articulated the legal obligation of a payor to make every effort to collect the commissions or to negotiate a reasonable settlement and thereby made no error of law, and

b. he made no error of fact or mixed fact and law in determining that the Respondent had made good faith efforts to recover money owing to the Appellant as the Respondent made many good faith efforts to obtain an explanation from the third party as to why the Appellant had not been paid, there were grounds for his termination, there were costs to secure a new site and it was unlikely the respondent would be able to recover the monies in any event.

[3] The appeal involved the same legal concepts as had been raised in the court below and counsel was the same lawyer who argued the trial.

[4] Counsel for the Appellant filed all of the materials and Bluelime filed only one short factum and a brief of authorities.

[5] The issues were not overly complex.

Costs Submissions

[6] Thereafter, the parties filed written submissions on costs.

[7] Bluelime seeks partial indemnity costs of $7,500 plus disbursements of $275.00. Counsel claims he spent 20 hours to prepare the appeal at a partial indemnity rate of $375 per hour.

[8] 6157734 suggests that Bluelime should be awarded costs in the amount of $1,500 inclusive of GST and disbursements on the basis that this appeal was not difficult, it involved the same issues as those argued at trial, and Bluelime’s counsel prepared nothing more than a short factum outlining essentially the same issues as had been argued at trial.

The Law

[9] The general rule is that a successful party is entitled to his or her costs on a motion. (Blue Range Resource Corp. (Re) (2001), 2001 ABCA 177, 202 D.L.R. (4th) 523 (Alta. C.A.), Ryan v. McGregor (1925), 1925 460 (ON CA), 58 O.L.R. 213 (App. Div). The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party in the circumstances. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26.)

[10] Section 131(1) of the Courts of Justice Act sets out the court’s general discretion to award costs as between parties to litigation. Rule 57.01(1) of the Rules of Civil Procedure sets a non-exhaustive list of factors to be taken into account in awarding costs including the time spent, the result achieved, the complexity of the issues raised, the conduct of the parties, and any other matter relevant to the question of costs.

[11] The case law has developed such that the expectations of the parties concerning the quantum of costs, is also a factor. (Zesta Engineering Ltd. v. Cloutier, 2002 25577 (C.A.) at para. 4; Boucher, supra, at para. 38.). A court need not undertake a line by line analysis of the hours claimed by counsel. (Fazio v. Cusumano, 2005 33782 (ON SC), 2005 Carswell Ont 4518 (Sup. Ct.) (WL), at para. 8.)

[12] Costs are generally awarded on a partial indemnity scale.

[13] Fixing costs is not a mechanical exercise. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party in the circumstances and takes into account the expectations of the parties. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26 (C.A.), and Zesta Engineering Ltd. v. Cloutier, 2002 25577 (ON CA), [2002] O.J. No. 4495, 118 A.C.W.S. (3d) 341 (C.A.), at para. 4.)

[14] A court need not undertake a line by line analysis of the hours claimed by counsel. (Fazio v. Cusumano, 2005 33782 (ON SC), 2005 Carswell Ont 4518 (Sup. Ct.) (WL), at para. 8.)

[15] Expectations of the parties concerning the quantum of costs are also considered. (Zesta Engineering Ltd. v. Cloutier, 2002 25577 (C.A.) at para. 4; Boucher, supra, at para. 38.)

[16] The purpose of the Small Claims Court is to improve access to justice and enable the parties to bring forward small claims quickly and at little cost. Those principles also apply to appeals from Small Claims court decisions. This is because the expectation of the parties regarding costs is significantly reduced and in all the circumstance costs should be awarded in a manner consistent with the expectation of the parties at the Small Claims court level. (Ibrahim v. Kadhim et al, (1982) 2007 37228 (ON SC), 86 O.R. (3d) 728.

Conclusion

[17] This was not a complex matter and counsel was well familiar with the issues raised as they were very similar to those raised at trial. Counsel was therefore already familiar with the facts and the legal principles at issue. Twenty hours for the preparation of one short factum is therefore excessive.

[18] The issues raised by the Respondent albeit not successful in the end, were not frivolous.

[19] Moreover, an award of almost $8,000 is not consistent with the expectation of parties on an appeal from the Small Claims court as set out above. This is particularly so given the one small document prepared by counsel.

[20] For these reasons, Bluelime is awarded costs inclusive of GST and disbursements in the amount of $2,000.

Thorburn J.

Date: July 29, 2016