Court File and Parties

Newmarket Court File No.: DC-15-0818 Date: 20160609 Ontario Superior Court of Justice

Between: N. K. P. PAINTING INC. Plaintiff (Appellant) – and – RONALD WILLIAM BOYKO, YORK CONDOMINIUM CORPORATION NO. 97 Defendant (Respondent in Appeal)

Counsel: F. Scott Turton, for the Plaintiff (Appellant) Carol A. Dirks, for the Defendant (Respondent)

Heard: April 26, 2016

Ruling on Costs

Douglas, J.

[1] On May 4, 2016 I released my reasons for decision in respect of the Appellant’s appeal in the above matter from the decision at trial of Deputy Judge Goldstein of the Richmond Hill Small Claims Court.

[2] For the reasons earlier provided I granted the appeal, set aside the judgment below and entered judgment in favour of NKP in the amount of $23,893.74 plus prejudgment interest pursuant to the Courts of Justice Act. Clearly NKP was the successful party in the proceedings before me.

[3] I have received and reviewed the parties’ submissions on costs.

[4] NKP requests costs of $5,000.00 for the appeal and $3,500.00 regarding the proceedings before the Deputy Judge.

[5] YCC 97 submits that the cost before the Deputy Judge ought to remain at $2,500.00 as the trial judge had determined, but in favour of the appellant, and costs of the appeal ought to be fixed in the all-inclusive amount of $3,571.69.

[6] Regarding the costs of the proceedings before the Deputy Judge, apparently those proceedings were spread over three days although it appears that an adjournment of the trial was necessitated on the first day after the appellant raised a new argument which was not specifically pleaded and which was not contained in the Agreed Statement of Facts, necessitating a calling of a responding witness by YCC 97.

[7] The cost award of the Deputy Judge was not a subject of this appeal. The Deputy Judge was, in my view, in the best position to determine an appropriate amount of costs given the context of Small Claims Court proceedings and in particular the concept of proportionality.

[8] For these reasons I will not interfere with the quantum of costs determined by the Deputy Judge; however, such costs should now be awarded in favour of the Applicant.

[9] As to costs of the appeal, 17.2 hours of lawyer time was spent, including the cost submissions, plus a half day attendance to argue the appeal. The amount in issue was approximately $24,000.00. Fees of $3,500.00 plus HST, plus disbursements of $1,071.69 for transcripts is sought.

[10] In Boucher v. Public Accountants Counsel for the Province of Ontario, [2004], 71 O.R. 3d 291 (CA) the Court of Appeal confirmed that “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.”

[11] The issue before me was focused and counsel were diligent in preparing materials that highlighted the issue in dispute without excessive expenditure of time and resources.

[12] Keeping in mind the factors in Rule 57.01 of The Rules of Civil Procedure and the Court of Appeal’s observations in Boucher cited above, in my view an appropriate disposition of costs for the appeal would be $2,500.00 plus HST for fees and disbursements in the amount of $1,071.69. In the result, costs to the appellant as follows:

a. $2,500.00 for trial; b. $2,500.00 plus HST for appeal ($2,825.00) c. $1,071.69 for disbursements on appeal

Total: $6,396.69

Douglas, J. Released: June 9, 2016