SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-4609-SR
DATE: 2012-03-16

RE: Wazir Shakur, Plaintiff

AND:
Mitchell Plastics (a division of ULTRA MANUFACTURING LIMITED), Defendant

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL:
Bernard T. Verbanac, for the Plaintiff
Landon P. Young, for the Defendant

Costs ENDORSEMENT

[ 1 ] This was an action for wrongful dismissal in which the Plaintiff was awarded the sum of $12,514.00, an amount which is well within the jurisdiction of the Small Claims Court. Although the action was commenced prior to the increase in the jurisdiction of the Small Claims Court, it is evident that there was no consideration given during the course of the proceeding to moving the action to that Court. Certainly no motion was brought to do that.

[ 2 ] The Plaintiff seeks costs in the sum of $21,409.07, an amount which is well in excess of the amount recovered in the action.

[ 3 ] Rule 57.05(1) provides that if 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. There does not appear to be any exception for cases which were commenced prior to the increase in the jurisdiction of the Small Claims Court.

[ 4 ] In my view, the policy behind Rule 57.05(1) applies regardless of when the action was commenced, in reference to change in monetary jurisdiction of the Small Claims Court. The policy is well expressed by Justice Nolan in Lore (c.o.b. Lore General Contracting) v. Tortola, [2008] O.J. No. 769 (S.C.J.), at para. 17 :

The Superior Court of Justice is currently overburdened with cases. Parties should not be rewarded with costs in matters that should have been properly brought in another forum designed to handle claims of a specific magnitude or monetary value, such as the Ontario Small Claims Court.

See also The Toronto-Dominion Bank v Thind, 2010 ONSC 6974 .

[ 5 ] It is incumbent on a Plaintiff to realistically assess the amount of his/her claim in order to ensure that the action proceeds in the Court having the appropriate monetary jurisdiction. A failure to do so may very well result in the court exercising its discretion under Rule 57.05(1).

[ 6 ] This was not a case which was close to the line of the monetary jurisdiction of the Small Claims Court. The only way in which the award could have realistically exceeded the monetary jurisdiction of the Small Claims Court would have been if a significant award of exemplary or punitive damages had been made. However, it was clear at the conclusion of the evidence that this was not warranted, and the Plaintiff correctly did not vigorously pursue those claims in argument. Moreover, much time in the trial was spent on the WSIB history of the Plaintiff during his employment with the Defendant, which really only related to the exemplary or punitive damages claim.

[ 7 ] As stated by Justice Gray in Toronto-Dominion Bank v Thind at para. 25, “if the plaintiff has made a deliberate decision to bring the proceedings in the Superior Court where it is clear that the Small Claims Court has jurisdiction, then, save in exceptional circumstances, the plaintiff should recover no costs.” To that statement I would add “bring or continue the proceedings.”

[ 8 ] The rules on costs are designed, at least in part, to encourage parties to realistically assess the merits and value of their cases as early as possible in the process in order to relieve the burden of the costs of litigation, if possible, not only on the parties, but on the public.

[ 9 ] For the foregoing reasons, there will be no order as to costs.

D.A. BROAD J.

Released: March 16, 2012