DIVISIONAL COURT FILE NO.: 05-0891
DATE: 20060725
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SHELLEY DUNBAR, ROBBIE THOMPSETT
Appellants Self-Represented
Appellants
- and -
HELICON PROPERTIES LTD.
A.J. Cassolato, for the Respondent
Respondent
HEARD: July 5, 2006
(On appeal from the Judgment of Deputy Judge D.J. Morin dated August 16, 2005)
McISAAC, J.:
[1] The appellants allege the trial judge made two errors in his assessment of damages for breach of contract in relation to their failure to complete the purchase of a new home in Barrie:
(i) he accepted that the defendant mitigated it’s losses in the absence of any evidence supporting this conclusion; and
(ii) he failed to respect the monetary jurisdiction of the Small Claims Court in calculating the award granted the respondent.
In addition, they suggest that the trial judge was not authorized to make an award of costs of $750 in favour of the respondents.
I) MITIGATION OF DAMAGES
[2] This transaction was scheduled to close on January 30, 2004, but did not due to the failure of the appellants. The respondent was able to obtain a binding sale to another purchaser one week later, but at a reduction of approximately $7,000. The appellants suggest that the respondent should have either “haggled” with this purchaser for a higher price or sought alternative purchasers prepared to pay a price closer to that of the appellants’ offer to purchase.
[3] I agree with the trial judge that mitigation is seldom perfect and that the efforts of the respondent were reasonable in all the circumstances. These include the winter season, the custom-built home, the unconditional nature of the alternate offer and the early closing date. I find no reason to interfere with this finding.
II) ERROR IN CALCULATION
[4] The appellants argue that because the monetary jurisdiction of the Small Claims Court is $10,000, the trial judge should have deducted the amounts set-off in their favour from that amount instead of the total damages alleged by the respondent, an amount found to exceed $15,000. The appellants have failed to satisfy me that the trial judge exceeded the monetary limit of the Small Claims Court. He awarded the respondent $10,000, which complies with the applicable regulation: see O. Reg. 626/00. Although novel, this submission is totally devoid of merit.
III) COSTS
[5] The trial judge awarded the respondent costs of $750 inclusive of approximately $250 in disbursements. The appellants argue that this $500 costs’ award exceeds the maximum provided for by way of counsel fee pursuant to R.19.04 (a) by $200. However, this provision has been interpreted as a daily counsel fee award: see Bird v. Ireland [2005] O.J. No. 5125 (S.C.J.) at para.40. Accordingly, this award conformed with the rule and I am not persuaded it should be disturbed.
CONCLUSION
[6] For all of these reasons, the appeal herein is dismissed. The respondent is awarded costs in the fixed amount of $3,000.
McISAAC, J.
Released: July 25, 2006