Court File and Parties
CITATION: Lahrkamp v. Metropolitan Toronto Condominium Corporation No. 932, 2018 ONSC 1771
DIVISIONAL COURT FILE NO.: 668/17
DATE: 2018/ 03/16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Michael Lahrkamp
Plaintiff/Appellant
– and –
Metropolitan Toronto Condominium Corporation No. 932
Defendant/Respondent
Timothy Duggan, for the Plaintiff/Appellant
Jonathan Fine, for the Defendant/Respondent
HEARD at Toronto: February 23, 2018
Reasons for Judgment
[1] The Plaintiff seeks leave to appeal the costs order made by Deputy Judge J. Prattas of the Small Claims Court on October 27, 2017. In that order the Deputy Judge awarded costs to the Defendant fixed in the total amount of $21.270.00.
[2] The costs order is in respect of a 12 day trial with respect to three claims brought by the Plaintiff seeking production of various records of the Defendant condominium corporation. At the end of the trial the parties delivered what the Deputy Judge described to be “lengthy and voluminous” written submissions.
[3] It is agreed between the parties that the total amount in dispute in the proceedings was $1500.00.
[4] The first issue raised by the Defendant was that the Divisional Court has no jurisdiction to hear the appeal.
[5] Section 31 of the Courts of Justice Act, R.S.O. 1990, c.43 provides as follows:
An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,
(a) for the payment of money in excess of the prescribed amount, excluding costs, or
(b) for the recovery of possession of personal property exceeding the prescribed amount in value.
[6] Under Ontario Regulation 244/10 s. 2 the “prescribed amount” is fixed at $2500.00.
[7] The Defendant submits that since the amount in dispute in the action was less than $2500.00, pursuant to s. 31 no appeal lies in respect of any costs order.
[8] I disagree. Section 31 cannot be read in isolation from s. 33 of the Courts of Justice Act. Section 33 reads:
No appeal lies without leave of the court to which the appeal is to be taken,
(a) from an order made with the consent of the parties; or
(b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.
[9] The effect of these two sections is that no appeal may be taken from a final order of the Small Claims Court where the amount in dispute in the action is less than $2500.00, excluding costs. In this case that means that the Plaintiff cannot appeal the merits of the order. However, an appeal as to costs may be taken to the Divisional Court with leave. To read the sections otherwise would be to deprive the Plaintiff of any right to appeal what is for most ordinary Canadians a substantial sum. This is a result that is contrary to the interests of justice and that is not called for by the wording of the legislation in question.
[10] Therefore I find that the Divisional Court does have jurisdiction to hear the Plaintiff’s appeal, provided that the test for leave is met.
[11] Leave to appeal a costs order should be granted sparingly and only if the trial judge has made an error in principle or the award is clearly wrong. Further, the proposed appeal “should raise an issue of some importance to the administration of justice that goes beyond the interests of the parties.” (Bougadis Chang LLP v. 1231238 Ontario Inc., 2012 ONSC 6409, [2012] O.J. No. 5433, (Ont. Div. Ct.) at para. 2).
[12] The Plaintiff alleges that the Deputy Judge erred in his costs order because he failed to consider the principle of proportionality.
[13] I disagree. Read as a whole, the Deputy Judge’s reasons on costs make it clear that he was alive to and did consider the principle of proportionality.
[14] Key to the Deputy Judge’s assessment on costs is his finding that the Plaintiff engaged in unreasonable behaviour during the proceedings. His reasons detail the nature of this unreasonable behaviour. Having made this finding he was entitled to make an award that exceeded the limit for costs in the Small Claims Court set out in s. 29 of the Courts of Justice Act.
[15] The Defendant was requesting its full indemnity costs, fixed in the amount of $158,114.81, consisting of just over $140,000 in fees and almost $18,000 in disbursements. The Deputy Judge recognized that the behaviour of the Plaintiff “cries out for a significant cost penalty”, but found that the costs awarded had to reflect that the matter was a Small Claims Court matter, where the amounts in dispute are lower and where “an unsuccessful litigant …is not expecting to get hit with a massive legal bill if he/she loses at trial.” In other words, regardless of other considerations, the costs award had to be proportional to the nature of the dispute, which was one within the jurisdiction of what the Deputy Judge referred to as the “People’s Court” where “access to justice is important.” It is for this reason that the Deputy Judge only awarded the Defendant $15,000 plus H.S.T. for legal fees and $4000 plus H.S.T. for disbursements.
[16] I also do not find that the proposed appeal raises an issue that goes beyond the interests of the parties such that leave to appeal should be granted.
[17] For these reasons the motion for leave to appeal is denied. The Defendant is entitled to its costs of the motion, which I fix in the amount of $4500.00, all inclusive.
Sachs J.
Released: March 16, 2018
CITATION: Lahrkamp v. Metropolitan Toronto Condominium Corporation No. 932, 2018 ONSC 1771
DIVISIONAL COURT FILE NO.: 668/17
DATE: 2018/ 03/16
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Michael Lahrkamp
Plaintiff/Appellant
– and –
Metropolitan Toronto Condominium Corporation No. 932
Defendant/Respondent
REASONS FOR JUDGMENT
Sachs J.
Released: March 16, 2018