Pietrangelo v. Lundrigan

44 O.R. (3d) 71

[1999] O.J. No. 3626

No. 1025

Ontario Superior Court of Justice

Divisional Court

A. Campbell, Cunningham and Soublière JJ.

May 18, 1999

Civil procedure -- Costs -- Order transferring action to Small Claims Court -- No jurisdiction to order that costs of action to date of transfer be paid to successful party at trial -- Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131

When an order is made transferring an action to the Small Claims Court, there is no jurisdiction to order that the costs of the action to the date of the transfer be paid to the successful party at trial.

Appeal of an order with respect to costs made on a motion to transfer and action to the Small Claims Court.

Cases referred to Graves v. Avis Rent A Car System Inc. (1993), 21 C.P.C. (3d) 391 (Gen. Div.); Shoppers Trust Co. v. Mann Taxi Management Inc. (1993), 1993 5487 (ON SC), 16 O.R. (3d) 192, 19 C.P.C. (3d) 7 (Gen. Div.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1)

Robert A. Haas, for appellant. Stephen H. Gibson, for respondent.

BY THE COURT: -- This case raises the issue: can this court, when transferring a case to Small Claims Court, order that the costs of the action to the date of transfer shall be paid to the successful party at trial?

This action, in respect of a land purchase in the then Village of Belmont, was started at St. Thomas in 1994. Browne, in ordering the case to Small Claims Court, ordered that the successful party at trial shall have their costs of the action to date of transfer in the cause with costs of the action subsequent to the date of transfer left to the discretion of the Deputy Judge presiding at trial in accordance with the rules and guidelines of the Small Claims Court. On the transfer motion, he allowed costs of $100.

The costs in this court were occasioned by the decision of the plaintiff to sue in this court instead of starting it in Small Claims Court. Whatever the jurisdiction of Browne J. to order costs thrown away in this court from the plaintiff to the defendants, the question is whether he had jurisdiction to make the order he did.

Browne J. had jurisdiction to award costs of the transfer motion in this court, which was the "proceeding" within the meaning of s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, he lacked jurisdiction to order costs payable in the other court because they were not proceedings before him. The order also exceeded the jurisdiction of the learned judge because nothing in the Courts of Justice Act gave him the jurisdiction to fetter the discretion of the trial judge in that court in respect of costs, which discretion is also further limited in respect of quantum.

Nothing in Shoppers Trust Co. v. Mann Taxi Management Inc. (1993), 1993 5487 (ON SC), 16 O.R. (3d) 192, 19 C.P.C. (3d) 7 (Gen. Div.) (J. Macdonald J.) or Graves v. Avis Rent A Car System Inc. (1993), 21 C.P.C. (3d) 391 (Gen. Div.) (Jennings J.) speaks directly to this point.

Because there was no jurisdiction to make the order, no leave to appeal is required.

For these reasons, the appeal is allowed and the order is set aside.

Order accordingly.