Court of Appeal for Ontario

CITATION: Van de Vrande v. Butkowsky, 2010 ONCA 400

DATE: 20100602

DOCKET: C51074

BEFORE: Weiler, Blair, and Rouleau JJ.A.

BETWEEN

Robertus (Bob) Van de Vrande

Plaintiff (Respondent)

and

Dr. Irwin Butkowsky

Defendant (Appellant)

COUNSEL:

Lisa E. Hamilton and Jay A. Skukowski, for the appellant

Walter R. Wellenreiter, for the respondent

Heard: January 13, 2010

On appeal from the judgment of Justice Festeryga of the Superior Court of Justice, sitting as a single judge of the Divisional Court dated June 2, 2009.

COSTS ENDORSEMENT

[1] In our judgment issued March 30, 2010 we allowed the appeal and sought submissions from the parties as to costs.

[2] The appellant had originally been awarded costs in the Small Claims Court fixed at $1,150 inclusive of disbursements and G.S.T. On appeal to the Divisional Court, this award was set aside and the Divisional Court awarded the respondent costs fixed at $1,200 inclusive of disbursements and G.S.T.

[3] In our view, the original Small Claims Court award of costs in the amount of $1,150 payable to the appellant ought to be reinstated. Further, the $1,200 costs award granted by the Divisional Court should be modified but only to the extent that this same sum should be payable to the appellant rather than to the respondent.

[4] With respect to the costs of the appeal, the appellant seeks costs on a substantial indemnity basis in the amount of $17,075.92 for the application for leave to appeal and in the amount of $22,479.12 for the appeal itself.

[5] The respondent submits that the appeal raised issues of broader importance and resolved issues raised in earlier cases. As a result, there should be no award of costs for the appeal. In the alternative, the respondent argues that, if costs are to be awarded, the amount should be modest. The respondent argues that there is no basis for making an award of substantial indemnity costs and the amount of the award should take into account the fact that the appeal is with respect to a Small Claims Court decision and involved a relatively modest amount.

[6] In our view, the appellant is entitled to costs in this court. However, we agree with the respondent’s submission that in light of the novelty and importance of the issue, as well as the fact that it is a Small Claims Court claim involving a modest sum, the cost award should be modest.

[7] In conclusion, therefore, the appellant is awarded costs of the Small Claims Court proceeding fixed at $1,150, costs of the Divisional Court proceeding fixed in the amount of $1,200 and costs in this court for both the leave to appeal application and the appeal itself fixed in the total amount of $2,500. Each of these sums is inclusive of disbursements and G.S.T.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”