Superior Court of Justice - Ontario
RE: CASSANDRA CHISHOLM, Plaintiff
AND:
GUY ROBBINS, JACQUELINE MILLER and GMC LEASECO LIMITED, Defendants
BEFORE: Mr. Justice John Macdonald
COUNSEL: Justin S. Linden, for the Plaintiff
Martha S. Binks and Ellen N. Gowland, for the Defendants
HEARD: In writing
costs ENDORSEMENT
1The plaintiff sued for damages as a result of coming in contact with the defendants’ vehicle as she exited a streetcar on May 23, 2000 and as a result of the defendant driver then assaulting her, by slapping her face. Her position at trial was that she sustained permanent injury to her shoulder which resulted in permanent partial disability.
2The case proceeded to trial for nine days in April and May 2013. In the pedestrian-motor vehicle component of the action, the jury found both the defendant Robbins and the plaintiff at fault and apportioned liability 95% to the defendant and 5% to the plaintiff. The plaintiff’s non-pecuniary general damages for this component of the action were assessed at $10,000.00, her pecuniary general damages (future loss of income) were assessed at $0 and her special damages (past loss of income) were assessed at $3,600.00. Following application of the $15,000.00 statutory deductible to the non-pecuniary general damages and the apportionment of 5% liability against the plaintiff, the plaintiff was entitled to $0 non-pecuniary general damages, $0 pecuniary general damages (future loss of income) and $3,420.00 special damages (past loss of income).
3In the assault component of the action, the jury found the defendant Robbins liable and assessed the plaintiff’s non-pecuniary general damages at $300.00, her pecuniary general damages (future loss of income) at $0 and her special damages (past loss of income) at $0.
4The plaintiff therefore was awarded a total of $3,720.00 damages. I ordered written submissions in respect of prejudgment interest and costs.
prejudgment interest
5This action was commenced on May 22, 2002 and the plaintiff claims prejudgment interest from that date, in the amount of $1,280.05.
6Applying section 128(3) of the Court of Justice Act, R.S.O. 1990 ch. C. 43, I find that the amount of prejudgment interest claimed is reasonable, and I award that amount.
7The plaintiff is therefore entitled to $3,720.00 damages plus $1,280.05 prejudgment interest, or a total of $5,000.05.
costs
8The plaintiff seeks costs on the partial indemnity scale as follows:
Fees
$115,553.75
Disbursements
$44,210.40
HST
$15,021.99
Total
$174,786.14
9The defendants submit that the plaintiff should be awarded no costs, having recovered an amount within the monetary jurisdiction of the Small Claims Court, and an amount substantially less than the defendants’ offers which were made during the course of trial, being $50,000.00 all inclusive and then $60,000.00 all inclusive.
Discussion
10The court has a substantial discretion in respective of costs, pursuant to section 131(1) of the Courts of Justice Act and R. 57.01 if the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. In addition, Rule 57.05(1) states:
57.05 (1) 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.
11Rule 57.05(1) applies to what the plaintiff “recovers”. Consequently, the rule hinges on the trial outcome and whether the plaintiff’s recovery was within the monetary jurisdiction of the Small Claims Court at that time. This rule therefore treats as irrelevant the question of whether the amount recovered was within the monetary jurisdiction of the Small Claims Court when the action was instituted. Nonetheless, that factor may be taken into account as part of the discretion provided by section 131(1) of the Act and Rule 57.01(1).
12The plaintiff submits that, in determining her costs entitlements, the statutory deductible otherwise applicable to her non-pecuniary general damages in the pedestrian-motor vehicle competent of her claim should not be taken into account. The plaintiff therefore submits that, for purposes of determining her costs entitlements, her recovery should be considered as $10,000.00 more, or a total of $15,000.05. On this basis, the plaintiff submits that her claim, inclusive of prejudgment interest, exceeded the monetary jurisdiction of the Small Claims Court when the claim was instituted, and when the action was set down for trial.
13In my opinion, Rider v. Didyck (2007) 81 O.R. (3d) 507 (C.A.) is distinguishable. For reasons given subsequently, R. 49.10, a key factor in that decision, does not come into effect in this case. Nonetheless, Wicken v. Harssar (2004), 2004 18856 (ON SCDC), 73 O.R. (3d) 600 (Div. Ct.) at paras. 39-44 supports the plaintiff’s position.
14Even if the plaintiff’s recovery is considered to be $15,000.05, that amount is within the monetary jurisdiction of the Small Claims Court as of the date of judgment and Rule 57.05(1) may be invoked.
15There were multiple offers. On January 11, 2013, the plaintiff offered to settle for $100,000.00 plus prejudgment interest and partial indemnity costs. On March 28, 2013, the plaintiff offered to settle for $50,000.00 plus prejudgment interest and partial indemnity costs. On April 18, 2013, during the trial, the plaintiff offered to settle for $40,000.00 damages plus $70,000.00 costs plus HST. On March 26, 2013, the defendants made a formal R. 49 offer in the amount of $0. On April 18, 2013, during the trial, the defendants offered $50,000.00 all inclusive and increased the offer on that same day to $60,000.00 all inclusive.
16Rule 49.10(1) does apply to the plaintiff’s offers since the plaintiff obtained a judgment less favourable than her offers.
17Rule 49.10(2) on its face is inapplicable because the plaintiff did not obtain a judgment “as favourable as or less favourable than” the defendants’ formal offer of $0. The plaintiff recovered a judgment more favourable than that insulting offer.
18Quite apart from R. 49.10, Rule 57.05(1) permits all offers to be taken into account in exercising the discretion in issue.
decision
19In the exercise of my discretion, I do not think it would be appropriate to apply Rule 57.05(1) so as to deprive the plaintiff of all costs. That is because, based on the medical evidence available to the plaintiff, it was not unreasonable to proceed for an amount of damages in excess of the monetary jurisdiction of the Small Claims Court. The fact that the plaintiff failed to exceed that monetary jurisdiction after a full trial may be, and in this case should be reflected in the amount of costs awarded. Rule 57.01(1)(a) states that the amount recovered is factor to be considered in exercising the discretion in issue.
20In addition, an award of costs should reflect more what the court views as fair and reasonable, rather than any exact measure of the actual costs. See Zesta Engineering Limited v. Cloutier (2002) 2002 25577 (ON CA), 21 C.C.E.L. (3d) 161 (Ont. C.A.); Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). This means that costs awards should be proportionate to what really was in issue as well as take into account the related factor of the reasonable expectation of the unsuccessful parties herein in respect of costs, and the other factors mentioned in Rule 57.01(1).
21I award to the plaintiff partial indemnity costs fixed in the following amounts, which are well below what the plaintiff has sought because of the very modest success achieved:
Fees
$15,000.00
Disbursements
$9,500.00
HST
as applicable
22The defendants’ offers made during the course of trial were $50,000.00 all inclusive and then $60,000.00 all inclusive. While these offers do not trigger the application of R 49.10 because they do not comply with R. 49.03, they may be taken into account pursuant to Rule 57.01(1). These offers were made on the fourth day of trial. While made very late in the day, they were nonetheless made before a further five days of trial. Taking into account the aforesaid conclusions in respect of the plaintiff’s costs entitlements, I conclude that the defendants finally took settlement positions which addressed the merits. This also supports a modest costs award herein.
Mr. Justice John Macdonald
Date: June 24, 2013