Citation: Shakur v. Mitchell Plastics, 2012 ONSC 4500
COURT FILE NO.: DC-12-374-ML
DATE: 2012-08-02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Wazir Shakur, Plaintiff (Moving Party)
AND:
Mitchell Plastics (a division of Ultra Manufacturing Limited), Defendant (Respondent)
BEFORE: The Honourable Mr. Justice D. J. Taliano
COUNSEL: Bernard T. Verbanac, Counsel for the Plaintiff Landon P. Young, Counsel for the Defendant
HEARD: August 1, 2012
ENDORSEMENT
[1] The plaintiff/appellant seeks leave to appeal a costs order made by Broad J. on March 16, 2012.
[2] Following a three day trial, held on February 6, 7 and 8, 2012, the plaintiff was awarded the sum of $12,000 in a wrongful dismissal case. Since the amount awarded was within the jurisdiction of the Small Claims Court, no costs were awarded pursuant to the discretion vested in the trial judge under Rule 57.05(1) of the Rules of Civil Procedure, which permits a trial judge to deny costs to a successful plaintiff under such circumstances.
[3] A party seeking leave to appeal a costs order pursuant to s. 133 of the Courts of Justice Act, must satisfy four requirements. The appellant must show:
- a good arguable case having enough merit to warrant the scrutiny of the court;
- issues that are important both to the parties and in general;
- the practical utility of the appeal; and
- the effect of delay on the proceeding caused by the appeal.
(see Rona Inc. v. Sevenbridge Developments Ltd., 2002 CanLII 31638)
[4] In connection with the first ground, (a good arguable case), that expression has been defined to require the appellant to show that there are strong grounds upon which an appellate court could find that the judge erred in exercising his or her discretion. (see Amhil Enterprises Ltd. v. Select Inc. (2006) CarswellOnt 483.)
[5] It was argued on the appellant’s behalf that at the time of the institution of the plaintiff’s action in August 2010, the Small Claims Court’s monetary jurisdiction was only $10,000. It was increased in January 2011 to $25,000. However, this case was never transferred to the Small Claims Court. Justice Broad held that the plaintiff had a continuing obligation to assess his case and to transfer it to the appropriate court once the court’s jurisdiction was amplified. Counsel for the appellant argued that the trial judge erred by requiring a re-evaluation of the choice of court after the monetary limits of the Small Claims Court were increased.
[6] Counsel for the appellant has filed a case brief containing several cases from British Columbia where litigants have been spared the costs consequences of being found in the wrong court following a judgment where the limits were changed after the commencement of the action. He relies in particular on Reiman v. Aziz, 2007 BCCA 448. I have read this and the other cases referred to in the appellant’s Brief of Authorities together with the Rules upon which those decisions have been based and I have concluded that they are not applicable to Ontario because of legislative differences between the two provinces governing this issue.
[7] For instance, the discretion vested in the trial judge in British Columbia under Rule 57(10) of the Supreme Court Rules disentitles a plaintiff to costs (other than disbursements) “unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court”. The trial judge’s discretion in Ontario is not so circumscribed by Rule 57.05, which simply provides:
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.
[8] Secondly, the Rule in British Columbia has been narrowly construed so as not to unduly interfere with a parties’ “legitimate choice of forum” which was held by the court to be equally compelling as the need to encourage parties to bring their claims under the Provincial Court’s monetary jurisdiction in that court. (see Para. 35 Aziz). In arriving at this conclusion, the British Columbia Court of Appeal pointed out that the transfer provisions of the Supreme Court Act of British Columbia permit a judge or master to transfer cases to the Provincial Court in specific circumstances but the grounds for transfer do not include reference to the Provincial Court’s monetary jurisdiction.
[9] The result arrived at in the Reiman decision was based on the court’s interpretation of a significantly different Rule and also on the fact that the litigant in that case had moved unsuccessfully before the local master prior to trial to transfer the case to the Provincial Court. Given the legislative differences, it is dangerous to take too much from the British Columbia cases.
[10] In addition, it appears that the policy considerations underlying the British Columbia legislation are not quite the same as those in Ontario.
[11] The policy considerations underlying Ontario’s legislation was expressed by Nolan J. in Lore (c.o.b) Lore General Contracting v. Tortola, 2008 CanLII 7749, at Para. 17 where she states that :
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.
[12] Broad J. relied on this same passage to support his decision. Another decision refers to the need to provide speedy and less expensive proceedings for less complex cases. (see Toskov v. TD Canada Trust, 2010 ONSC 6138, Para. 51.)
[13] However, the monetary jurisdiction of the Small Claims Court was not the only factor that influenced his decision. The trial judge, in his costs ruling, referred to the fact that the undue length of the trial was caused by the plaintiff’s unsuccessful pursuit of an issue (the appellant’s WSIB history) upon which he was basing his punitive damage claim. Discovery had been conducted prior to trial and it cannot be said that the plaintiff would not have been in a position to properly evaluate that issue prior to trial, yet it was an issue raised by the plaintiff’s pleadings which was pursued with vigour right up until argument.
[14] In order to grant leave to appeal on the question of costs alone, the court must be satisfied that the discretion of the trial judge was not exercised judicially and the matter was decided on a wrong principle of law. In this case, the trial judge’s reasons were detailed and thoughtful and he was in the best position to decide this issue. His discretion cannot be lightly interfered with. As Steele J. put it in Yakabuski v. Mackillican et al, 1988 CarswellOnt 537, leave to appeal a costs order “should be granted sparingly and only in very obvious cases”. This is not such a case.
[15] In conclusion, I see no error in principle contained in the trial judge’s reasons. Accordingly, leave to appeal must be denied.
[16] The respondent is entitled to its costs of this motion which I fix in the sum of $2,500 inclusive.
Taliano J.
Date: August 2, 2012