Court File and Parties

Court File No.: SC-11-007

SUPERIOR COURT OF JUSTICE GERALDTON SMALL CLAIMS COURT

PATRICK CYR Plaintiff

-and-

HUBERT CLOUTIER cob CLOUTIER CONTRACTING Defendant.

SUPPLEMENTARY REASONS FOR JUDGMENT-DECISION ON COSTS

of Deputy Judge K. Cleghorn, delivered August 1, 2012 at Thunder Bay, Ontario

APPEARANCES

Patrick Cyr, N/A Hubert Cloutier, N/A (Submissions made in writing)

CLEGHORN (Dep. Judge-SCC)

This matter was heard on May 10, 2012 at Geraldton, Ontario. Oral reasons for judgment were delivered on that day.

The plaintiff, Patrick Cyr, was awarded judgment as against the defendant in the amount of $3,000.00. In relation to costs, the plaintiff, Patrick Cyr, was awarded costs, being all disbursements incurred by him. The Court was not advised of any written offers being made in the course of the proceeding.

Written submissions were provided by the plaintiff, however, requesting specific disbursements. There was no response made by the defendant to the written submissions of the plaintiff.

The Court is being asked to do a judicial assessment of costs. As in all cases, the Court has a very broad discretion with respect to costs and may consider anything relevant pertaining to costs: Toronto (City) v. First Ontario Realty Corp., 2002 CanLII 49482 (ON SC), [2002] O.J. No. 2519, 59 O.R. (3d) 568 (Ont. S.C.J.).

The summary of costs claimed by the plaintiff shall be reviewed herein and dealt with category by category.

Fee for Filing Claim

The amount claimed is $75.00. This is an appropriate disbursement and shall be recovered by the plaintiff.

Postal and Courier Charges

The plaintiff claims $44.05 for postal and courier charges, supported by receipts. This is an appropriate disbursement and shall be recovered by the plaintiff.

Travel to Court

The plaintiff claims a total of $400.00 for two trips to the Nipigon Court office. It is unclear why the trips had to be undertaken. There is no context given for the trips, nor any indication as to why telephone, facsimile and/or regular mail would not have been sufficient for the transaction of his business. Although there may be some rationale for this, it seems patently unreasonable on its face that the defendant must pay for this exercise which seems, at best, to be poor or unfortunate planning.

In the exercise of judicial discretion, one must be always mindful that litigation must never be so expensive as to prevent parties from having their day in court. A successful plaintiff will not be permitted to expend whatever he/she deems appropriate in a given case and then have a court sanction what can only be categorized as an excessive cost.

It is reasonable for the plaintiff to receive some reimbursement for travel costs. Schedule 3 of Ont. Reg.432/93 states that the court can award “Reasonable travelling expenses actually incurred, but not exceeding the kilometer allowance set out in Regulation 11…” (my emphasis). The plaintiff shall recover $100.00 for all travel costs relating to attendances at the Nipigon Court office. The amount is arbitrary, and admittedly low, to recognize that the plaintiff had such an expense but he has not provided any information to properly calculate it i.e. no context is given in terms of where he travelled from, the distance travelled, etc.

Lawyer’s Fees

The plaintiff claims $339.00 for lawyer’s fees. The question is whether this is an appropriate “disbursement”. On the one hand, a party is entitled to receive the benefit of independent legal advice in any legal proceeding. On the other hand, this should have been raised at the conclusion of the trial to permit the defendant the opportunity to argue whether this amount should be awarded to the plaintiff. I am not inclined to award this amount after the fact when the issue was not raised beforehand. This amount would have been properly considered as a “representation fee” and is not a disbursement in the strict sense of the word. Only disbursements per se were awarded at the conclusion of the trial, not any amounts for legal advice provided to the plaintiff. The plaintiff appeared alone at trial and made no mention of having incurred any legal fees in regard to this matter. Rule 19.05 does allow the court to award up to $500.00 as “compensation for inconvenience and expense” where the successful party is self-represented and the amount claimed exceeds $500.00. The plaintiff did not request any such amount.

DECISION

As a result, the plaintiff, Patrick Cyr, shall have costs as against the defendant fixed in the amount of $219.05, payable forthwith.

Order accordingly.

K. CLEGHORN, Deputy Judge-SCC

Dated at Thunder Bay, Ontario this 1st day of August, 2012.