Court File and Parties

KENORA COURT FILE NO.: CV-13-042 DATE: 2016-06-13

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KENORA FLOORING CENTRE INC. Plaintiff, Defendant by Counterclaim

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WAYNE NICHOLAS DEGAGNE, DEGAGNE MULTI-ELECTRIC and LEA MACALINO DEGAGNE AND 2225171 ONTARIO CORPORATION Defendants, Plaintiffs by Counterclaim

Counsel: Bernd M. Richardt, for the Plaintiff, Defendant by Counterclaim Cheryl M. Siran, for the Defendants, Plaintiffs by Counterclaim

Heard: via written submissions

Before: Mr. Justice W.D. Newton

Decision On Costs

[1] By reasons dated May 21, 2016, I dismissed the claim of the plaintiff which was for approximately $14,000 and also dismissed the counterclaim of the defendants which was for about $100,000.

[2] The plaintiff now seeks partial indemnity costs of approximately $27,000 for a 3 ½ day trial. The action was originally commenced in small claims court but, as result of the substantial counterclaim, the action was transferred to this court.

[3] The current cost issue demonstrates the folly of becoming too entrenched in settlement positions. The plaintiff had made an offer to settle to pay $10,000 to the defendants. That offer was withdrawn shortly before the commencement of trial. The defendants had offered to settle by accepting the sum of $15,000. So, a fight over $5000 resulted in all parties incurring significant legal fees.

[4] The plaintiff argues that it was more successful (less of a loser) than the defendants and that, as the biggest loser, the defendants should pay the costs. The defendants argue that Mrs. Degagne and the numbered company were not proper parties and that those defendants should recover some costs. The defendants argue that the costs claimed are excessive when compared to the bill of costs submitted on behalf of the defendants.

[5] An award of costs is a matter in the discretion of the court by virtue of s. 131(1) of the Courts of Justice Act. The overriding principle is one of reasonableness. Costs should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than a mathematical calculation of time spent or the rates charged by the successful party’s lawyer. See Zesta Engineering v. Cloutier, [2002] O.J. No. 4495 (C.A.), at para. 4.

[6] I agree with the defendants that Mrs. Degagne and the numbered company were not proper parties. I also agree with the plaintiff that, as the biggest loser, some costs should be payable by the Degagne company in failing to succeed with its substantial counterclaim.

[7] In the circumstances, I view the sum of $10,000 plus GST as the fair and reasonable amount that should be paid by the unsuccessful party and so order that the Degagne Company and Mr. Degagne pay costs to the plaintiff fixed in the amount of $10,000 plus GST.

“Original signed by”____ The Hon. Mr. Justice W.D. Newton

Released: June 13, 2016