Tristen Audet

The court determined the costs of an appeal where success was divided.

The damages award in favour of the respondents had been reduced, but they remained substantially successful.

The court considered the factors under Rule 57.01 and the principle of proportionality under Rule 1.04(1.1), noting the reasonably complex legal issues and the appellant's unsubstantiated allegations of fraudulent misrepresentation.

The respondents were awarded $13,821.19 in costs inclusive of fees, disbursements, and taxes.

The appellant purchaser appealed a Small Claims Court judgment finding she breached an agreement of purchase and sale for a condominium unit and awarding the respondent vendors $25,000 in damages plus costs.

The appellant argued she was justified in refusing to close due to concealed Kitec plumbing and stained carpets.

The Divisional Court dismissed the appeal on liability, finding the appellant knew of the plumbing and there was no evidence the carpet stains were concealed.

However, the court allowed the appeal in part on damages, holding the trial judge erred by failing to credit the $15,000 deposit against the damages, thereby reducing the award to $15,000.

The court also reduced the costs award to comply with the 15% statutory limit under the Courts of Justice Act.