CITATION: Riddell v. Carefree Moving Inc., 2018 ONSC 1972
DIVISIONAL COURT FILE NO.: DC/752/17 DATE: 20180323
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
MATTHEW RIDDELL
Moving Party/Appellant
– and –
CAREFREE MOVING INC.
Respondent
Appearing on his own behalf
No one appearing for the Respondent
HEARD at Toronto: March 5, 2018
Gilmore J.
MOTION FOR LEAVE TO APPEAL
NATURE OF PROCEEDING:
[1] The moving party/appellant applies for leave to appeal the costs order of Deputy Judge Prattas sitting as a Small Claims Court judge on December 11, 2017 in Toronto.
[2] The appeal relates to an order requiring the appellant to pay the respondent the sum of $250 in costs following a consent order setting aside the default judgment obtained by the appellant.
[3] The respondent did not appear although it was properly served with all of the material both personally (to the owner of the corporation at the corporation’s address) and by email. The respondent did not have counsel although it was required to obtain counsel by the rules. The respondent filed no material.
[4] The appeal raises two issues. First, the appellant argues that the Deputy Judge exceeded his jurisdiction by ordering $250 in costs when the Small Claims Court rules provide for a maximum of $100 in costs on a motion. Second, the appellant had submitted an Offer to Settle to withdraw the default judgment on two occasions prior to the motion.
[5] Leave from this court is required where an appeal relates only to costs (Courts of Justice Act, s. 133). A single judge of the Divisional Court may hear an appeal from a final order of the Small Claims Court (Courts of Justice Act, s. 21(2)(b)).
ANALYSIS AND RULING
[6] When this matter was heard on March 5, 2018, I made a handwritten endorsement granting both the appeal and leave to appeal with reasons to follow. I did so on the basis that the Deputy Judge had exceeded his jurisdiction in ordering an amount of costs in excess of the amount permitted by the Small Claims Court Rules on a motion without giving reasons for any “special circumstances” that would merit such an order.
[7] Following the making of that endorsement I have had the opportunity to review a recent decision of the Divisional Court, namely Lahrkamp v. Metropolitan Toronto Condominium Corporation No. 932, 2018 ONSC 1771.
[8] In that decision the plaintiff sought leave to appeal a costs order of $21,270 awarded to the defendant after a 12 day trial. As the amount in dispute in the proceedings was under $2,500, the defendant argued that the Divisional Court had no jurisdiction to hear the appeal.
[9] The court disagreed and treated the costs amount separate from the amount in dispute indicating that “to read the sections otherwise would be to deprive the plaintiff of any right to appeal what is for most 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 (para 9).”
[10] My reading of this decision is that it applies by analogy to the facts in this case. That is, the amount in dispute in a proceeding must be at least $2,500 excluding costs as per section 31(b) of the Courts of Justice Act, R.S.O. 1990, c.43 and the amount of costs must be at least $2,500. Otherwise, the Divisional Court has no jurisdiction to grant leave.
[11] Further, based on Lahrkamp, an incongruous result could occur if a party is unable to obtain leave where the amount in dispute is under $2,500 but is potentially able to obtain leave on a costs appeal where the costs awarded are less than $2,500.
[12] There is also the issue of whether or not the order appealed from is a final order since it was obtained on motion. As the matter was effectively dismissed, I view that as a less significant impediment to granting leave.
[13] Therefore, given that the appeal relates to a costs order of less than $2,500, and given the decision in Larhkamp above, I must set aside my orders made on March 5, 2018. Leave to appeal is denied.
[14] No costs.
__________________________ Gilmore J.
Released: March 23, 2018
CITATION: Riddell v. Carefree Moving Inc., 2018 ONSC 1972
DIVISIONAL COURT FILE NO.: DC/752/17
DATE: 20180323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
MATTHEW RIDDELL
Moving Party/Appellant
– and –
CAREFREE MOVING INC.
Respondent
REASONS FOR JUDGMENT
Gilmore J.
Released: March 23, 2018