CITATION: Cornish v. Legal Aid Ontario, 2022 ONSCDC 4725

COURT FILE NO.: DC-20-6

DATE: 20220815

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

PHILIP BRENT CORNISH

Plaintiff/Appellant

-and-

LEGAL AID ONTARIO, LESLEY BYFIELD, JANET BUDGELL and JANET FROUD

Defendants/Respondents

Counsel:

Philip Cornish, acting in person

Christopher Casher, for the Defendants/Respondents

Before: Justice R. Chown

Heard: July 25, 2022

Additional Reasons for Decision

[1] Mr. Cornish has correctly pointed out that in my reasons for decision in this appeal, I did not address the issue of the costs allowed by the small claims court judge. The issue of costs was addressed by both parties in the factums and in oral argument.

[2] It is not necessary for a judge’s reasons to deal with every argument made by the parties in a hearing. However, I have taken the time to look back at this matter to assure myself that I did not improperly overlook this issue. For Mr. Cornish’s benefit, I will provide these additional on the costs issue.

[3] The deputy judge awarded $3,772.24 in costs. This included $1,285.17 for disbursements as claimed. Under rule 15.07 of the Small Claims Court Rules, “The costs of a motion, exclusive of disbursements, shall not exceed $100 unless the court orders otherwise because there are special circumstances.” The deputy judge found that special circumstances existed. She found that the claim had no basis, especially against the individual defendants. She said the claim could “only be explained as the catharsis to be had in harassing the defendants.” She felt the claim was an abuse of the court’s process.

[4] In his factum, Mr. Cornish says the deputy judge relied on “the wrongly founded conclusions she reached about the Plaintiff’s motivation in bringing the Claim.” He says that using costs “as a punitive tool that does not fit within the special circumstances framework is an error in principle,” and that the costs award was “predicated on prejudicial considerations.”

[5] In oral argument, Mr. Cornish’s main point was that the deputy judge had made an error in principle because of the scale of costs she allowed. He submitted the circumstances did not justify the deputy judge’s decision to exercise her discretion to award more than $100. He made the point that the deputy judge allowed all the disbursements and her reasons do not specifically articulate her reasons for doing so. He noted that the disbursements included a hotel bill for counsel for LAO for attendance the night before the motion. Mr. Cornish also submitted that the costs award approached the cap, which he submitted should be done only in cases where there has been a trial, and should not have been done where the case was decided on a motion.

[6] Mr. Cornish conceded that he had not sought leave to appeal the costs award. However, he requested leave to amend the notice of appeal if this is required. Under s. 133(b) of the Courts of Justice Act, leave to appeal a costs award is needed if the appeal “is only as to costs that are in the discretion of the court that made the order for costs.” This appeal was not “only as to costs,” so I do not think leave was required. No argument was directed to the question of whether, in an otherwise unsuccessful appeal, leave is required to maintain a costs appeal, and I have not been provided any authority on this point. In any event, I did not decide the costs appeal on the basis that leave was not requested, but rather I decided it on its merits.

[7] A costs award is a discretionary order. “A court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, at para. 27.

[8] I would not have allowed a disbursement for a hotel bill for out-of-town counsel. Also, based on the materials in the appeal record, I would not have found that the claim was “inappropriate behaviour demonstrated by a lack of integrity” on the part of Mr. Cornish, as the deputy judge found. However, I would not interfere with the deputy judge’s exercise of discretion on the costs award. The claim was completely lacking a reasonable foundation and was clearly doomed to fail from the outset. As an experienced lawyer, Mr. Cornish should have known this and should have recognized he was running a risk of incurring a significant costs award. I do not think that the deputy judge committed an error in principle in awarding more than $100 in costs. The overall amount awarded for costs was not unreasonable in the circumstances.

[9] Finally, I was not provided any authority to suggest that the 15% cap available for costs in small claims court is reserved for cases that go to trial. In many cases, including many cases that do not go to trial, the 15% cap is not going to reasonably reflect the costs incurred by a party. The legislature has nevertheless determined, on a policy basis, that the 15% cap is appropriate. The legislature has prioritized proportionality. The proportionality is to the amount in dispute, and a cap is imposed even where the effort and expense required is necessarily disproportionate to the amount in dispute. The costs award here was proportional to the amount in dispute. In fact, the deputy judge awarded less than the cap even though the defence effort required was disproportionate to the amount in dispute.

[10] I would not allow the appeal of the costs award.

[11] Mr. Cornish shall file his responding submissions on the issue of costs in the appeal within 14 days.

Chown J.

Released: August 15, 2022