Kovac v. Royal Botanical Gardens, 2019 ONSC 4151
CITATION: Kovac v. Royal Botanical Gardens, 2019 ONSC 4151
DIVISIONAL COURT FILE NO.: DC-18-0056-00
DATE: 2019-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. Gordon R.S.J., Backhouse and S.T. Bale JJ.
Parties
BETWEEN:
Carolin Kovac
Plaintiff (Respondent)
- and -
Royal Botanical Gardens, and Aviva Ontario Casualty Unit
Defendants (Applicants)
Counsel
Self-represented
Anne-Louise Cole, for the applicants
HEARD at Brampton: April 9, 2019
Overview
1This is an application for judicial review of an order for costs, made by a deputy judge, at the conclusion of a Small Claims Court settlement conference.
2In addition to the order for costs, the deputy judge ordered that the parties re-appear before him for a second settlement conference.
3In the underlying action, the Respondent alleges that the Applicants are liable for injuries she suffered as a result of a fall on a recreational trail, on land owned by Royal Botanical Gardens. The Applicants do not dispute that the Respondent fell on the trail, but deny liability.
4The relief requested by the Applicants includes an order setting aside the order for costs, and an order prohibiting the deputy judge from presiding over a further settlement conference in the action.
Background Facts
5The settlement conference was held in June 2018. In making the orders that he did, the deputy judge reasoned as follows:
The defendants were advised of the significance of compromise & good faith negotiations at a settlement conference for this process to be effective. Relying upon its position that there is no liability which is far from certain in support of its position that it will not make an offer other than a consent to dismissal without costs. Counsel for the defendant take no issue with injuries suffered by plaintiff & the costs to litigate this matter. The plaintiff indicated a desire to negotiate & made a verbal compromise on her claims which was significant. Neither party’s claim or defence is without flaws and there is merit to both the claim & defence. This is the type of situation that cries out for reasonable compromise, candid discussion & good faith resolution.
The defendant claims it has a right to its position to deny liability, and this is true. However coming to a settlement conference with an all or nothing position is unreasonable behavior warranting the censure of this court by an award of elevated costs in the interest of justice. Compromise is a necessary function of advocacy and the administration of justice. Good faith negotiation is an essential element of the settlement conference process.
The defendant was repeatedly cautioned that should it take an all or nothing approach this court would consider a significant cost award payable to the plaintiff who has attended here in reasonable anticipation of resolution discussions and possible resolution. These cautions went for naught & the defendant position remains fixed & unwavering.
In the circumstances I award the plaintiff $500 costs for today payable in 30 days.
This settlement conference is adjourned to a date to be fixed by the court on notice to the parties back before me.
I do not by this endorsement direct that the parties must settle this claim or the amount of that settlement but I do direct the parties to approach the settlement conference with an open mind & a willingness to compromise their respective positions.
6An affidavit of Brian Gibb who represented the Applicants at the settlement conference was filed in support of this application. Although the general rule is that the evidence to be considered on judicial review is restricted to the record that was before the decision-maker, this affidavit was admitted because it contained evidence concerning the conduct of the settlement conference.
7The following is a brief summary of the evidence contained in Mr. Gibb’s affidavit:
- that he filed a brief of the relevant law and evidence for use at the settlement conference;
- that prior to his attendance at the settlement conference, he reviewed the Respondent’s settlement brief with his clients;
- that he attended the settlement conference with an Aviva insurance adjuster, as well as an employee of Royal Botanical Gardens who would be able to assist with answering any questions relating to the operation and maintenance of the trail on which the Respondent fell;
- that when asked at the outset of the settlement conference whether the Applicants were prepared to make an offer to settle, he informed the deputy judge that based upon the evidence presented by the Respondent, and the applicable law, the applicants were prepared to consent to a dismissal of the Respondent’s claim without costs;
- that the deputy judge then cautioned him that failing to make an offer at a settlement conference in his court generally results in a costs award in the range of $1,500 to $2,000 “as it is a frustration of the rules of the Small Claims Court which he advised require compromise”;
- that on two occasions during the settlement conference, he left the courtroom with his clients to discuss settlement – the result of their discussions being a decision not to modify their initial settlement position;
- that upon being informed that the Applicants would not be further compromising their position, the deputy judge said that he agreed that a party has a right to hold a position, but would order costs against them if they did not make a further offer;
- that when he pointed out to the deputy judge that the Respondent had not offered to compromise her claim of $25,000, the deputy judge then spoke with her, with the result that she offered to settle for $15,000; and
- that the deputy judge then proceeded to write his endorsement.
8The Respondent also filed an affidavit in which she confirmed that the Applicants had been unwilling to negotiate, and expressed the opinion that Mr. Gibb had been rude.
Jurisdiction
9An appeal lies to this court from a final order of the Small Claims Court: s. 31, Courts of Justice Act. There is, however, no right of appeal from an interlocutory order.
10This court does have jurisdiction to hear an application for judicial review of an interlocutory order of the Small Claims Court; however, the scope of the jurisdiction is narrow: the court will be reluctant to interfere, unless the order is made without jurisdiction, or there is a breach of the duty of procedural fairness. This court will not exercise its jurisdiction to judicially review an interlocutory order of the Small Claims Court where the judicial review application is, in essence, an appeal by a different name: Peck v. Residential Property Management Inc., 2009 38504 (ON SCDC), [2009] O.J. No. 3064, Goodman v. Florin, 2017 ONSC 4110.
Applicants’ position
11The Applicants’ position is that the deputy judge had no jurisdiction to make the order he made, and that there was a breach of the duty of procedural fairness.
Analysis
Jurisdiction
12The Applicants’ offer to settle at the outset of the settlement conference was a consent dismissal of the Respondent’s claim without costs. They argue that in awarding costs against them for failing to better their offer during the course of the settlement conference, the deputy judge exceeded his jurisdiction.
13Rule 13.02(7) of the Small Claims Court Rules provides that the court may award costs against a person who attends a settlement conference if, (a) in the opinion of the court, the person is so inadequately prepared as to frustrate the purposes of the conference; or (b) the person fails to file the required material.
14Rule 13.05 provides that a judge conducting a settlement conference may make any order relating to the conduct of the action that the court could make, including an order for costs.
15Rule 13.10 provides that the costs of a settlement conference, exclusive of disbursements, shall not exceed $100 unless the court orders otherwise because there are special circumstances.
16The Applicants argue that the evidence does not support a finding that Mr. Gibb was inadequately prepared or failed to file the required material, or a finding of special circumstances, and point out that no such findings were made by the deputy judge.
17The difficulty with this argument is that we are being asked to undertake a substantive review of the merits of the costs order. The deputy judge had jurisdiction to make an order for payment of costs in the amount he did, and the fact that he may have made an error in coming to the conclusion that he did, would not result in a loss of jurisdiction. This argument is an example of the “appeal by a different name” referred to in Peck.
Duty of procedural fairness
18The Applicants argue that a high level of procedural fairness is required in Small Claims Court, and we agree. However, we see no evidence that the parties were not accorded the procedural rights to which they were entitled, and it is unclear what procedural rights the Applicants say were absent. The two prongs of procedural fairness are the right to be heard, and the right to be judged impartially and independently. In this case, the parties received notice, disclosure of the opposing party’s position, an opportunity to be heard, and reasons for the deputy judge’s decision.
19The Applicants’ argument appears to be that they had a right to maintain their settlement position without being threatened with costs, and that had they made a settlement offer which the Respondent accepted, the costs threat would have deprived them of their day in court. However, the Applicants did not make a further offer, nor have they been deprived of their day in court.
20There is an obligation on litigants to prepare for and attend a settlement conference with a mind open to the position of the opposing litigant, and the views of the presiding judge. Failure to do so thwarts the legitimate purposes and objectives of the settlement conference, and wastes the time and money of all involved. In such circumstances, an order for costs may well be warranted. On the other hand, parties to an action are entitled to maintain their positions during a settlement conference, and to have the matter proceed to trial. They are under no obligation to accept a settlement proposed by an opposing litigant, or the presiding judge, and are under no obligation to compromise. If, in the present case, the costs order was made solely because the Applicants failed to better their initial settlement offer, then it was made in error, but such an error would not amount to a breach of procedural fairness. Again, the difficulty with the Applicants’ argument is that we are being asked to undertake a substantive review of the merits of the costs order.
Disposition
21The application for an order setting aside the order for costs is dismissed.
22In the circumstances of this case, however, we find it to be inappropriate that the Applicants be compelled to attend before the same deputy judge for a second settlement conference, and unfair to the Respondent that her claim be subject to further delay. It is therefore ordered that this matter proceed directly to trial, unless a further settlement conference, before a different deputy judge, is requested on the consent of all parties.
23Neither party requested costs, and there will therefore be no order as to costs.
R.D. Gordon R.S.J.
Backhouse .J
S.T. Bale J.
Date of Reasons for Decision: July 8, 2019
Date of Release: July 8, 2019
CITATION: Kovac v. Royal Botanical Gardens, 2019 ONSC 4151
DIVISIONAL COURT FILE NO.: DC-18-0056-00
DATE: 2019-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. Gordon R.S.J., Backhouse and S.T. Bale JJ.
Parties
BETWEEN:
Carolin Kovac
Plaintiff (Respondent)
-and-
Royal Botanical Gardens and Aviva Ontario Casualty Unit
Defendants (Applicants)
REASONS FOR DECISION
Date of Reasons for Decision: July 8, 2019
Date of Release: July 8, 2019