CITATION: Louws Kitchen Designs Ltd. v. France, et al., 2016 ONSC 799
COURT FILE NO.: 44924/03
DATE: 2016/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOUWS KITCHEN DESIGNS LTD.
Luigi De Lisio, for the Plaintiff/Defendant by Counterclaim
Plaintiff
- and -
SYLVIA FRANCE and STEVEN FRANCE and NIAGARA CREDIT UNION LIMITED
Ronald Greenspan, for the Defendants/Plaintiffs by Counterclaim
Defendants
The Honourable Madam Justice W.L. MacPherson
COSTS ENDORSEMENT
[1] This is an action arising out of a home renovation undertaken in 2002. The plaintiff sought payment of an outstanding account plus the cost of extras and the defendants sought damages for work that they claimed was completed negligently, carelessly and in contravention of the Ontario Building Code.
[2] The plaintiff’s claim was for approximately $38,000.00. The plaintiff obtained judgment in the amount of $17,142.91. The defendants’ counterclaim was for approximately $58,000.00. The defendants’ counterclaim was dismissed.
[3] The judgment was rendered on November 30, 2015. The parties were invited to make written submission on costs, which submissions have now been received.
[4] The plaintiff is seeking costs on a partial indemnity basis in the amount of $35,194.28 comprised of fees of $29,994.28, disbursements of $1,229.76 and HST of $3,970.24.
[5] The defendants submit that in all of the circumstances, the court should exercise its discretion under Rule 57.05(1) of the Rules of Civil Procedure and order no costs to the plaintiff. In the alternative, and if costs are to be awarded to the Plaintiff, it is submitted the amount claimed should be substantially reduced. The amount claimed is twice the amount of its judgment and should not be allowed as it is excessive, unfair and disproportionate. It is submitted that time and disbursements related to the construction lien claim that was ultimately withdrawn on a without costs basis should not be permitted as part of any cost award. Finally, it is submitted that the court should exercise its discretion to award costs payable in accordance with Rule 19 of the Small Claims Court Rule and s. 29 of the Courts of Justice Act. This would limit the award of costs (other than disbursements) to an amount not to exceed 15 percent of the amount claimed unless it is necessary to penalize a party for unreasonable behaviour.
[6] The plaintiff was successful at trial and thus is presumptively entitled to costs. However, the plaintiff was found to have breached the contract with the defendants and to have poorly designed the front hall, but due to lack of evidence, no amount was awarded on the counterclaim. The fact that the amount recovered was within the jurisdiction of the Small Claims Court is a relevant consideration. It is also apparent that at least some of the time spent was in relation to the construction lien action, which was withdrawn without costs. It appears that many of the disbursements were in relation to the lien action. Finally, there must proportionality between the amount recovered and the costs awarded.
[7] The court is also mindful of the principle as enunciated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ontario Court of Appeal), 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
[8] After considering all of the above, the appropriate order is that the defendants shall pay costs of $7,200.00, inclusive of disbursements and HST to the plaintiff.
MacPherson J.
Released: February 1, 2016
CITATION: Louws Kitchen Designs Ltd. v. France, et al., 2016 ONSC 799
COURT FILE NO.: 44924/03
DATE: 2016/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LOUWS KITCHEN DESIGNS LTD.
Plaintiff
- and -
SYLVIA FRANCE and STEVEN FRANCE and NIAGARA CREDIT UNION LIMITED
Defendant
COSTS ENDORSEMENT
MacPherson J.
Released: February 1, 2016