ONTARIO SUPERIOR COURT OF JUSTICE
Windsor Small Claims Court
SC-12-43257
SC-12-43257-D1
B E T W E E N
KENNETH D. FOURNIER
Plaintiff
Defendant in Defendant’s Claim
- and -
JEREMY CARTIER
Defendant
Plaintiff in Defendant’s Claim
BEFORE: Deputy Judge James Branoff
COUNSEL: Richard Lammers for Plaintiff/Defendant in Defendant’s Claim
Marc Levy for Defendant/Plaintiff in Defendant’s Claim
HEARD: Written Submissions
COSTS ENDORSEMENT
Following a 3 day Trial, Reasons for Judgment were released wherein costs were dealt with as follows:
The Defendant was successful in defending the Plaintiff’s Claim for $19,254.76, but unsuccessful in his claim for $1,975.00.
The Plaintiff was unsuccessful in his claim for $19,254.76, but successful in defending the Defendant’s Claim for $1,975.00.
It might appear that success was divided, but given the disparity of the quantum of each Claim, I am inclined to find that the Defendant’s success was greater than the Plaintiff’s success. Although not known, it is reasonable to conclude that had the Plaintiff not made the Claim for $19,254.76, the Defendant might not have pursued a claim for $1,975.00 as he knew there were some issues with his work and that his work was not yet complete.
In any event, most of the Trial focused on the Plaintiff’s Claim. The Defendant’s Claim for the balance owing, where the amount of the agreement and amount paid were not at issue, did not involve much, if any, additional Court time.
I am therefore inclined to award costs to the Defendant for this 3 day Trial, but have not yet made a final decision in this regard. Naturally, the Court is not aware if there were any Offers to Settle which might impact both on the entitlement and quantum of any costs.
If the parties cannot agree on costs, the Defendant will have 15 days from the release of this Judgment to provide written submissions of no more than 3 pages. The Plaintiff will then have 10 days to respond in writing, also limited to 3 pages and the Defendant will have 5 days to respond in writing, limited to 1 page.
The Defendant seeks costs of $4,464.31 in fees plus disbursements of $2,072.05 for a total of $6,536.35 plus “penalty costs” in accordance with the provisions of Section 29 of the Courts of Justice Act.
The general or basic principal to be applied is that costs follow the event. The result, or event, favoured the Defendant who succeeded in defending the Plaintiff’s Claim for $19,254.76 while losing a Defendant’s Claim for $1,975.00 which very likely would never have been brought, but for the Plaintiff’s Claim.
Little or no time was spent on the Defendant’s Claim as the basic facts for the same were not contested, but it was a question of whether or not the Defendant was entitled to be paid the balance owing on the agreed upon price, which was addressed within the Plaintiff’s Claim as both involved the quality and adequacy of the Defendant’s work on the car shell.
Regardless of whether a party chooses to bring a Claim or is forced into defending a Claim, it is apparent or expected that the party that is unsuccessful will be called upon to pay costs to the other party. The Plaintiff chose to bring his action for $19,254.76 and it was quite logical to expect that if that claim failed, there would be costs to pay. That is a risk that all Plaintiffs take when an action is commenced and the recovery of costs is an expectation that all Defendants have if they successfully defend the claim.
There is no reason or justification to deviate from the basic premise that costs follow the event and that the Defendant herein was successful and therefore ought to recover costs from the Plaintiff. The issue that remains is the determination of the quantum of those costs.
Section 29 of the Courts of Justice Act provides:
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 interest of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.
- Rule 19.06 of the Small Claims Court Rules provides:
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.
I can see no reason to exceed the limits prescribed by Section 29 or to apply Rule 19.06. The conduct of the Plaintiff at Trial was not such that it ought to attract the punitive measures that can be applied. The Plaintiff’s approach to this matter did operate to extend the length of the Trial, but not significantly so as to attract any penalty. The Plaintiff’s own evidence was very repetitive, particularly when dealing with each and every one of 182 photographs separately. The evidence could have been effectively introduced if the photographs had been grouped or batched, with each group being described collectively rather than each photograph individually. Nevertheless, this is not the nature of misconduct that the aforequoted Section and Rule are intended to address so as to attract the punitive element therein.
Reference was made to an Offer to Settle, which I have determined is non-consequential to the issue of costs. The only Rule 14 Offer to Settle was made by the Plaintiff who was willing to accept $13,000 all inclusive in satisfaction of both Claims, which offer was made after the first day of Trial and before resuming the Trial for its second and third days. The Plaintiff did not obtain a Judgment as favourable as or more favourable than the terms of the offer. The Defendant was therefore justified in not accepting the same. There was no Offer to Settle made by the Defendant at anytime during the proceedings. Offers to Settle therefore do not impact on the issue of costs.
The Defendant indicates in paragraph 17 of his submissions that the Defendant was willing to walk away from his claim in exchange for the Plaintiff doing the same. That may have been the final judicial result, but the Defendant provides nothing to demonstrate making such a proposal so that the same could in some way be interpreted or afforded the status of constituting an Offer to Settle. Rule 14.01(2) indicates which forms may be used, but the use of such forms is permissive, not mandatory, and therefore an Offer to Settle can take other written forms, but no such other forms have been produced herein.
The Defendant’s representative has included copies of the Defendants legal and paralegal accounts. The actual accounts are not particularly helpful in the determination of the quantum of costs. The Small Claims Court is limited in its ability to award costs, unlike the Superior Court of Justice where no such limits apply. The Small Claims Court is therefore not as concerned with the number of hours spent and the hourly rate charged by the representative based on the years of experience. The determination of costs in a Small Claims Court matter is not as analytical as it is in the Superior Court. In any event, the accounts did not include details of hours and rates.
Having found that there is no basis or justification for exceeding the limit set by Section 29 of the Courts of Justice Act, and recognizing that this was a Trial that lasted 3 full days, there is equally no basis or justification not to award the full 15% that is permitted together with the various authorized and reasonable disbursements.
Except in extraordinary circumstances, none of which exist herein, the intent of an award of costs is not to fully compensate the successful party, but to assist that party with having to pay legal costs to successfully prosecute or defend a claim. In the Superior Court there are 2 recognized scales of costs, substantial indemnity and partial indemnity, with the definition of these scales stipulating that substantial indemnity shall be equal to 1.5 times partial indemnity. It follows therefore, that the costs that are generally awarded, being on a partial indemnity scale, are roughly 2/3 or 67% of substantial indemnity costs. Accordingly, full or substantial recovery of costs is the exception and not the norm.
The Defendant successfully defended a claim for $19,254.76, but unsuccessfully prosecuted a claim for $1,975.00. The quantification of the Defendant’s success is the difference between these 2 amounts, or $17,279.76. 15% of this amount is $2,591.96. I can see no reason not to award this amount in this matter which involved 3 full days of Trial.
I am not awarding any amounts for service as there were no documents submitted to show an actual disbursement having been incurred. I am not awarding any compensation as claimed in the sum of $706 for lost days of work. Any additional cost of the Defendant in having to locate new representation when his initial counsel would not take the case to Trial should not and cannot be visited upon the Plaintiff. There is no doubt that the Defendant incurred other expenses relating to the service of documents, filing with the Court, postage, faxing, long distance calling, traveling and photocopies. No particulars have been provided, but I find that an allowance for the same as “miscellaneous disbursements” would be appropriate.
The Defendant shall have his costs payable by the Plaintiff as follows:
Representation fee $2,600.00
Pleading preparation (Defence) 100.00
H.S.T. on the fees of $2,700 351.00
Filing of Defence 40.00
Miscellaneous disbursements 109.00
TOTAL COSTS AWARDED $3,200.00
July 2, 2013
Deputy Judge James Branoff