Court File and Parties
COURT FILE NO.: C-646-14 DATE: 2019-02-26 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MAHADEO PARSO and GOORDAI PARSO, Plaintiffs AND: A&P CANADA CO. operating as FOOD BASICS, Defendant
BEFORE: The Honourable Mr. Justice P.J. Flynn
COUNSEL: G. Masgras, Counsel for the Plaintiffs N. Chutko, Counsel for the Defendant
COSTS ENDORSEMENT
[1]
Background
On October 23, 2018, before Sloan J., the parties settled damages at $30,000 with prejudgment interest to be calculated at 5%/annum on $25,000. Liability and contributory negligence were sent on to trial.
2When the parties came before me for trial on February 5, 2019, they then settled those two issues and agreed that the Plaintiff was 75% contributorily negligent. That means that the Plaintiff is entitled to $7,500 in damages for a grocery store slip and fall. The Statement of Claim sought damages of $1,400,000 plus interest and costs.
3Suffice to say the Plaintiff’s entitlement is now within the Small Claims Court jurisdiction.
4As part of their settlement, the parties agreed that the Plaintiff is entitled to costs. So when they appeared before me I ordered them to deliver written Costs Submissions.
5These I have received and reviewed. I am frankly surprised by the depth and volume of the material I received from both sides.
[6]
Costs
On a partial indemnity scale (and there is nothing to even suggest costs ought to be awarded on a higher scale), the Plaintiffs seek total costs of $43,544.68, consisting of $32,737.76 in fees and HST and $10,806.92 in disbursements.
7For their efforts in defending the claim, the Defendant would have sought fees (and HST) of $23,200.48 and disbursements of $2,207.13.
8I am now meant to fix the Plaintiffs’ costs such as are fair and reasonable and within the Defendant’s reasonable expectations.
9The Defendant was not expecting the Plaintiffs’ costs claim to exceed 500% of his recovery. Further, the Defendant argues that the Plaintiffs’ claim is unfair, unreasonable and disproportionate.
10First, the Defendant argues that several disbursements claimed are not recoverable:
(i) ATE Insurance $1,458.00 (ii) LawPro $ 50.00 (iii) Krylov $ 50.00 (iv) OHIP $3,342.35 (v) Kitchener Rehab $3,245.00 (vi) Tomescu $ 565.00 (vii) K-W Urgent Care $ 50.00 (viii) Dr. Arnold $ 120.00 $8,880.35
11I agree. Whether as after-the-event insurance (in this I follow Firestone J. and Milanetti J.) or as a subrogated claim, or as treatment costs or incurred after the agreement on damages, these amounts are not recoverable.
12While the costs-fixing exercise is not a line-by-line assessment, I must carefully scrutinize claims which one side labels as illegitimate. So, the Plaintiffs’ remaining disbursement claim amounts to $1,926.57, which I allow.
13The $32,737.76 claimed for fees and HST, in my view, is out of kilter, totally disproportionate and unreasonable for a Small Claims Court amount. In my view, even if I were to double the ultimate damages award (i.e. $15,000) to arrive at an amount for costs, I would be straining reasonableness.
14But Defendant’s counsel, while providing me with a Costs Outline, did not argue for any particular bottom line result. Nor did she raise the spectre of no-costs because of the very modest damages recovery.
15So I will place my own thumb of reasonableness on the scales here and fix those fees, including all taxes, at $13,000.
16That means the Plaintiff is entitled to recover a total of $14,926.57 for costs.
[17]
Prejudgment Interest
In her transmittal letter containing her costs submissions, Ms. Chutko suggests that I may be required to intervene on the prejudgment interest question.
18Sloan J.’s endorsement in that regard reads:
“PJI to be calculated at 5%/annum on $25,000.”
19I will not intervene. Sloan J.’s endorsement seems clear.
P.J. Flynn J.
Date: February 26, 2019