Hutton v. Blimkie and Blinn, 2018 ONSC 3147

Court File and Parties

COURT FILE NO.: 18-64363

DATE: May 23, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NICK HUTTON

Plaintiff

• and -

KENDRA BLIMKIE and CHRISTOPHER BLINN

Defendants

Counsel: Jordan B. R. Palmer, for the Plaintiff Samuel Nash, for the Defendants

Heard in Writing

JUDGMENT ON COSTS

The Honourable Mr. Justice H. S. Arrell

INTRODUCTION:

1The plaintiff commenced an action in Small Claims Court in Hamilton for breach of contract regarding renovations to a house. The defendants defended that action and issued a defendant’s claim within the Small Claims Court monetary jurisdiction.

2The plaintiff ultimately decided to issue a statement of claim in the Superior Court for defamation regarding this incident.

3The plaintiff has brought this motion to transfer the Small Claims Court actions to the Superior Court to be consolidated with the Superior Court Action. The defendant ultimately consented to the motion and I have signed such an Order.

ISSUES:

4The parties were unable to agree on costs. The defendants take the position that they are entitled to costs thrown away in the Small Claims Court action for work done to date.

5The plaintiff takes the position that payment of costs is now premature, and all costs for all actions should be decided by the trial judge once the merits of the case are decided.

ANALYSIS:

6The defendants argue much of the work done in the Small Claims Court action is wasted and will have to be re-done in the Superior Court action. They sight specifically that they will now have to draft a new defence and counterclaim in the Superior Court actions as well as the time spent at a settlement conference. The defendants request costs on a Superior Court scale up to the date of the settlement conference in October 2017 at $4957.11.

7The plaintiff argues that the work done in drafting the defence and defendants’ claim is not wasted or useless as required by the case law for costs thrown away to be awarded.

8The plaintiff further argues that costs can be awarded by the trial judge for work done in the Small Claims Court action and therefore there is no prejudice to the defendants in an order leaving the issue of costs to the trial judge after deciding the merits of the case and hearing all the evidence.

9It is significant that the Small Claims Court action was never set down for trial and no trial date was set. It is also significant that the Superior Court action deals with defamation based on comments made some time after the alleged breach of contract. These are two distinct causes of action with distinct and separate damage claims.

10The defendants rely on Haggan v. Mad Dash Transport Ltd. (“Haggan”), 2018 ONSC 1889 in support of their request for costs where a Small Claims Court action was transferred to the Superior Court and costs that were incurred in the Small Claims Court action were considered wasted.

11I am satisfied Haggan is distinguishable. The court in that case was unable to understand how and why the claim changed and after a trial date had been set.

12Such is not the facts with the cases at bar. As stated earlier, they are separate and distinct causes of action occurring at different times.

13I am not satisfied that the defendants time in Small Claims Court has been rendered useless other than perhaps some filing fees. The drafting of pleadings, preparing the file, interviews, and discussion with the parties is all needed in the Superior Court actions as those matters move forward to the discovery stage, and although the two actions are separate, they are intertwined.

14The request for costs in the Small Claims Court action is left to the discretion of the trial judge deciding these consolidated actions.