ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Brindley Farm Equipment Ltd. and Brindley Auction Services Ltd.
M. Armstrong, for the Appellants
Appellants
- and -
Wayne Robillard
P. Chin and E. Contino, for the Respondent
Respondent
HEARD: In Writing
ENDORSEMENT RE: COSTS
FRAGOMENI J.
1In my judgment dated October 18, 2018 I allowed the appellants’ appeal and ordered that the plaintiff’s claim shall proceed to a new trial before a different Deputy Judge.
2As the successful parties in the appeal, the appellants seek costs of the appeal. The appellants seek costs in the sum of $7,266.21 all-inclusive. The appellants filed a Bill of Costs outlining each step taken in their appeal.
3The appellants set out the following factors in support of their position:
− the appeal was moderately complex. It required an examination of the role of the trial judge as gatekeeper, to ensure only properly admissible evidence is permitted at a trial;
− the appeal was of great importance to the appellants who are in the business of buying and selling used farm equipment;
− there was no unreasonable conduct on the part of the appellants in proceeding with the appeal process;
− the appellants were successful in their appeal and securing a new trial.
4The $7,266.21 is comprised of $5,308.18 for fees plus $1,958.03 for disbursements.
Position of the Respondent, Wayne Robillard
5The respondent seeks an order that the costs of the appeal be in the cause of the action to be re-tried. In support of that position the respondent points to the following factors:
− the appellant is a large corporation with approximately 20 million dollars in business. As such, awarding costs of the appeal in the cause will not prejudice the appellants;
− awarding costs at this time will seriously affect the respondent as he is a self-employed stone mason and hobby farmer;
− any award of costs will serve to only discourage a re-trial of this matter;
− the trial judge made the error allowing the evidence and the respondent should not, therefore, be held responsible for the trial judge’s error;
− Small Claims Court is a court for the people.
6In the alternative, the respondent submits that in the event that the court determines that costs of the appeal ought to be awarded at this time, a reasonable amount is $2,500.00.
ANALYSIS & CONCLUSION
7I am satisfied that the appellants are entitled to costs of the appeal. They were successful and there is nothing in the record before me to support the respondent’s position that costs ought not to be awarded at this time.
8I do not accept the respondent’s position that he bears no responsibility of the issue that resulted in this matter being sent back for a new trial. The respondent tendered as a key piece of evidence at the trial the letter of Bill Harvey, knowing it was unsworn and unsigned. The respondent had clearly indicated to the court that his intention was to call Bill Harvey as a witness and then decided to proceed without him. As I indicated in my Reasons for Judgment, the trial judge placed significant weight on this unsigned and unsworn letter.
9I have considered and reviewed the appellant’s Bill of Costs, keeping in mind the very important principle of proportionality.
10The Deputy Judge at trial granted judgment against the appellants for $12,509.29 plus interest and costs. The appellants’ request for costs of the appeal in the sum of $7,266.21 is, in my view, excessive considering the proportionality principle.
11The issues raised on appeal were not complex and the hearing itself was not unduly lengthy.
12The disbursements listed in the Bill of Costs are as follows:
DISBURSEMENTS
Law Pro Civil Transaction Levi:
$50.00
HST on Levi
$6.50
To File Notice of Appeal with Divisional Court
$125.00
Payment to Process Server:
$77.08
Courier Fees to Owen Sound and to Brampton Div. Crt.:
$76.90
Courier Fees to Brampton:
$14.62
Payment to Court Reporter for Trial Transcripts:
$782.60
Payment to Process Server for Filing of Notice of Appeal:
$39.55
Payment to Process Server for Filing of Appeal Book, etc.:
$90.40
Payment to Minister of Finance for Filling Fees of Appeal Book:
$405.00
Photocopying x 1,750 pp:
$175.00
HST on Copies:
$22.75
Payment to Courier Appeal Docs. to court and opposing counsel:
$73.88
Payment to Precision Print for copies of photos for evidence book:
$18.75
Disbursements Total:
$1,958.03
13The total amount of the disbursements are $1,958.03. I am satisfied the disbursements are reasonable.
14With respect to fees, I am satisfied that $3,000.00 all-inclusive is fair and reasonable and proportionate to the amount of the claim being defended.
15I am prepared to fix costs of the appeal in the all-inclusive sum of $5,000.00.
Fragomeni J.
Released: January 14, 2019
CITATION: Brindley Farm Equipment Ltd. v. Robillard, 2019 ONSC 351
COURT FILE NO.: DC-17-81
DATE: 20190114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
Brindley Farm Equipment Ltd. and Brindley Auction Services Ltd.
Appellants
- and -
Wayne Robillard
Respondent
ENDORSEMENT RE: COSTS
Fragomeni J.
Released: January 14, 2019