SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SC-08-1391 (Small Claims Court)
DATE: 2012-05-15

RE: Ann Coffey, Plaintiff

– and –

Horizon Utilities Corporation, Defendant

BEFORE: The Honourable Madam Justice J. A. Milanetti

COUNSEL:
Ms. Ann Coffey, Self-Represented
Mr. Brian Decaire, for the Defendant

COSTS ENDORSEMENT

[ 1 ] The defence asked for its costs of this action. They were successful in both dismissing the claim of the plaintiff and in their own counterclaim. The background information is as follows:

• The plaintiff’s claim was for $943.79;

• The plaintiff’s claim was dismissed in its entirety;

• The defendant’s counterclaim was awarded in the amount of $418.19 plus prejudgment interest from the date of notice;

• The trial took place over three days;

• The defendant presented its defence within the afternoon of the first day of trial, while the plaintiff spent two days conducting a lengthy cross-examination of the defendant’s only witness, Mr. Hart;

• I was not made aware of any offers to settle which complied with Rule 14.07;

• I am mindful that if the representation fee is too low, successful parties at trial could ultimately be unsuccessful monetarily after paying their lawyers;

• Section 1.04(1.1) of the Rules of Civil Procedure state that:

“In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.”

• Section 131 of the Courts of Justice Act states:

“Subject to the provisions of an Act or rules of the court, the costs of … a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs are paid.”

[ 2 ] Other rules that bear in my decision are as follows:

• Rule 19.04 of the Rules of Small Claims Court states:

“If a successful party is represented by a lawyer … the court may award the party a reasonable representation fee at trial or at an assessment hearing.”

• Section 29 of the Courts of Justice Act states:

“An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.”

• Rule 19.06 of the Rules of Small Claims Court states:

“If the court is satisfied that a party has unduly complicated or prolonged an action or has otherwise acted unreasonably, the court may order the party to pay an amount as compensation to another party.”

[ 3 ] Section 29 of the Courts of Justice Act refers to “unreasonable behaviour”. The defendant submits that the plaintiff acted unreasonably in this action.

[ 4 ] An understanding of the term “unreasonable” in the context of s. 29 of the Courts of Justice Act can be gleaned from Rule 19.06 of the Rules of the Small Claims Court, which states that a court may order a party to pay costs where “a party has unduly complicated or prolonged an action or has otherwise acted unreasonably”. It follows that where a party has prolonged an action, I may deem her behaviour to be unreasonable.

[ 5 ] Accordingly, I find that there was unreasonable behaviour on the part of the plaintiff due to her lengthy and unproductive cross-examination of Mr. Hart. This provides me with grounds to grant an award of costs that exceeds 15 percent of the amount claimed in the action.

[ 6 ] However, I must exercise restraint by applying the principal of proportionality.

[ 7 ] The defendant seeks a representation fee of $2,100.00. I am told their actual legals were $2,100.00 per day for the three days of trial. The length of the trial, and presumably some of this expense/protracted cross-examination was the result of the sad and untimely death of the judge originally seized of this matter. It came before me as a result of her passing before the trial was completed and after transcripts were produced to the court and the parties.

[ 8 ] While the defendants argue that significant principles are involved in this litigation – their legal fees are not of the sort that an unsuccessful litigant would be expecting to pay.

[ 9 ] While I do find the plaintiff’s cross-examination of the only witness was excessive – perhaps the court could have been more proactive in limiting same. That being said, a self-represented litigant should not be expected to bear responsibility for fees of $2,100.00 per day when their claim was less than $1,000 on its best day.

[ 10 ] I would award the defendant costs, but would limit those to $300 plus disbursements of $100 plus HST. Those fees are double the 15 percent suggested by the Rules given knowledge as the unnecessary/unfocused approach of the plaintiff, but reflect more properly the size of the claim with which Horizon was faced.

[ 11 ] Disbursements shall be limited to $100. These are the limits under Rules 19.01(3) and (4) as I was provided no breakdown of the expenses sought by defence counsel.

[ 12 ] As such, costs of $300 plus HST plus $100 disbursements shall be payable to Horizon.

Released: May 15, 2012

MILANETTI J.