COSTS ENDORSEMENT
CITATION: John Nunes v. Miguel Magalhaes and another, 2015 ONSC 75
COURT FILE NO.: CV-09-386758
DATE: 20150106
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOHN NUNES, Plaintiff
AND:
MIGUEL MAGALHAES and CLEMENTINA PEREIRA, Defendants
BEFORE: CHIAPPETTA J.
COUNSEL: Rebecca Nelson, for the Plaintiff
Martin Bufton, for the Defendants
HEARD: In Writing
COSTS ENDORSEMENT
[1] This matter proceeded to trial before me for essentially two days. While the Plaintiff was ultimately successful, his damages were far less than the $850,000 originally claimed. Rather, the Plaintiff was awarded damages as agreed by the parties prior to trial, namely $24,000, an amount within the monetary jurisdiction of the Small Claims Court.
[2] The Plaintiff now seeks the costs of the action at $59,193.62 on a partial indemnity scale, inclusive of G.S.T. In my view, this is an appropriate case to exercise my discretion and order that the Plaintiff shall not recover any costs. I make this order in part for the following reasons:
On October 16, 2014, the parties agreed that damages would be fixed at $24,000 should liability be found; nowhere near the $850,000 originally claimed by the Plaintiff. Upon agreement, in my view, the reasonable expectation of the parties in terms of costs ought to have recalibrated consistent with the agreement on damages.
On November 19, 2013, the Plaintiff made an offer to settle of $10,000 plus cost as agreed upon or assessed in accordance with Rule 49 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. The Plaintiff obtained judgment more favourable than the said offer. The circumstances taken as a whole, however, militate against the Plaintiff’s entitlement to partial indemnity costs from that date.
Although the Plaintiff was successful in proving liability, I nevertheless found his evidence deliberately untruthful at times.
The matter proceeded under regular procedure (Rule 76.13(2) of the Rules of Civil Procedure).
The recovery of the Plaintiff falls within the jurisdiction of the Small Claims Court (s. 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43).
Consideration of the principles of Rule 57.01(1) particularly the amounts claimed and the amounts received, proportionality, the conduct of the Plaintiff at trial and the reasonable expectations of the parties.
My discretion under s. 131 of the Courts of Justice Act.
[3] The Defendants submit that they should be awarded their costs on a partial indemnity basis. I see no reason to make such an award particularly as I found the Defendants’ evidence at trial to be purposively untruthful as well.
[4] For these reasons, no award of costs is made.
CHIAPPETTA J.
Date: January 6, 2015