Court of Appeal for Ontario

Date: 2019-06-28 Docket: C65542

Judges: Lauwers, Pardu and Nordheimer JJ.A.

Between

Jasmine Theberge-Lindsay Plaintiff (Respondent)

and

3395022 Canada Inc. o/a Kutcher Dentistry Professional Corporation Defendant (Appellant)

Counsel

Chris Dockrill, for the appellant

Ryan Kornblum, for the respondent

Heard: in writing

On Appeal

On appeal from the judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice, dated May 25, 2018, with reasons reported at 2018 ONSC 3222.

Costs Endorsement

[1] On June 7, 2019, we released our decision in which we allowed the appeal and varied the judgment below accordingly. We invited the parties to make written submissions on the costs of the appeal and of the trial. We have now received and reviewed those submissions.

[2] The appellant seeks its costs of the appeal in the amount of $11,000 on the basis that it was successful on its appeal. The appellant also seeks its costs of the trial in the amount of $10,000 on the basis that the respondent's recovery was modest, sufficiently so that it would have fallen within the jurisdiction of the Small Claims Court. The respondent accepts that the appellant is entitled to its costs of the appeal but submits that those costs should be fixed at $10,000. The respondent says that the costs award of $15,000 at trial in her favour should remain for a net amount due to the respondent of $5,000.

[3] We would fix the costs of the appeal at $10,000 in favour of the appellant. We would make no order as to the costs of the trial. While admittedly the respondent was successful at trial, her success, as found by this court, was very limited. She also recovered an amount that would have been within the jurisdiction of the Small Claims Court. On that latter point, we note that r. 57.05(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 expressly provides that where "a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court, the court may order that the plaintiff shall not recover any costs".

[4] In the end result, we order that the appellant shall recover its costs of the appeal fixed at $10,000, inclusive of disbursements and HST, and that there be no award of costs of the trial.

P. Lauwers J.A. G. Pardu J.A. I.V.B. Nordheimer J.A.