Cost Awards (Small Claims)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	383
Page Categories:	[Ontario Small Claims Court], [Cost Awards]
Citation:	Cost Awards (Small Claims), CLNP 383, <https://rvt.link/70>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/07/26

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O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT

19.01 (1) A successful party is entitled to have the party’s reasonable disbursements, including any costs of effecting service or preparing a plaintiff’s or defendant’s claim or a defence and expenses for travel, accommodation, photocopying and experts’ reports, paid by the unsuccessful party, unless the court orders otherwise. O. Reg. 78/06, s. 38 (1); O. Reg. 440/10, s. 3 (1).

(1.1) For greater certainty, subrule (1) includes costs associated with the electronic filing or issuance of documents under these rules. O. Reg. 44/14, s. 13.

(2) The clerk shall assess the disbursements in accordance with the regulations made under the Administration of Justice Act and in accordance with subrules (3) and (4); the assessment is subject to review by the court. O. Reg. 258/98, r. 19.01 (2); O. Reg. 440/10, s. 3 (2).

(3) The amount of disbursements assessed for effecting service shall not exceed $60 for each person served unless the court is of the opinion that there are special circumstances that justify assessing a greater amount. O. Reg. 258/98, r. 19.01 (3); O. Reg. 78/06, s. 38 (2); O. Reg. 440/10, s. 3 (3).

(4) The amount of disbursements assessed for preparing a plaintiff’s or defendant’s claim or a defence shall not exceed $100. O. Reg. 440/10, s. 3 (4).

Limit
19.02 Any power under this rule to award costs is subject to section 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded. O. Reg. 78/06, s. 39.

19.03 Revoked: O. Reg. 440/10, s. 4.

Representation Fee
19.04 If a successful party is represented by a lawyer, student-at-law or paralegal, the court may award the party a reasonable representation fee at trial or at an assessment hearing. O. Reg. 440/10, s. 5; O. Reg. 230/13, s. 15.

Compensation for Inconvenience and Expense
19.05 The court may order an unsuccessful party to pay to a successful party who is self-represented an amount not exceeding $500 as compensation for inconvenience and expense. O. Reg. 440/10, s. 5.

Penalty
19.06 If the court is satisfied that a party has unduly complicated or prolonged an action or has otherwise acted unreasonably, the court may order the party to pay an amount as compensation to another party. O. Reg. 78/06, s. 39.

Ashton Hot Tubs And Fitness Inc. v RoMar Inc., 2007 CanLII 89314 (ON SCSM)

6. There is some controversy still about the interplay of s. 29 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 14.07 of the Small Claims Court Rules. A number of reported cases from this court consider failure to accept a settlement offer which is then exceeded at trial to be an example of “unreasonable behaviour in the proceeding” permitting the costs to exceed 15% under s. 29.[1] The effect of such reasoning is almost always the doubling of the costs otherwise determined. In my view, this line of reasoning does not fully account for the interaction between the statutory provision and the Rules.

7. Section 29 of the Courts of Justice Act:

29 An award of costs in the Small Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed or the value of the property sought to be recovered unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding.

8. Rule 14.07 of the Small Claims Court Rules:

14.07 (1) When a plaintiff makes an offer to settle that is not accepted by the defendant, the court may award the plaintiff an amount not exceeding twice the costs of the action, if the following conditions are met:

1. The plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer.

2. The offer was made at least seven days before the trial.

3. The offer was not withdrawn and did not expire before the trial.

(2) When a defendant makes an offer to settle that is not accepted by the plaintiff, the court may award the defendant an amount not exceeding twice the costs awardable to a successful party, from the date the offer was served, if the following conditions are met:

1. The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.

2. The offer was made at least seven days before the trial.

3. The offer was not withdrawn and did not expire before the trial.

23. That exceeds the 15% limit imposed by s. 29 of the Courts of Justice Act if only the amount claimed in the main acton is considered. But there is also a Defendant’s Claim for $25,000 involved here. While the plaintiffs had very little interest in the outcome of that Defendant’s Claim, they were involved in it: the plaintiff George Coicici was cross-examined by counsel for Romar, and the witness called by Ronar further implicated Ashton Pools in a breach of contract. As well, as in every such case, the plaintiffs had to sit through the evidence relevant to the Defendant’s Claim. I find that the amount of the claim is the total of the two Claims, $50,000.00. This cost award does not exceed 15% of that amount.

26. Counsel for Romar is a lawyer with two years experience who only became involved in the action near to the trial date, but who then had to prepare for the trial of both Claims. I assess a reasonable representation fee in the circumstances of this case of $1000.00 per day. Applying Rule 14.07(2), the conditions of which are once again met, I double that to $2000.00 per day, or $4000.00 for the two days. Under Rule 19.06 I also order compensation of an additional $1000.00. This amount does not exceed the 15% limit in s. 29 considering the total amount claimed in the two Claims but if it did I would have found that, as in the main Claim, it is necessary in the interests of justice to penalize Ashton Pools for unreasonable behaviour in the proceeding and I would have allowed the entire $5000.00. No disbursements are claimed by Romar, but the court file shows $40.00 paid to file the Defence to Defendant’s Claim and I’ll allow that.

Parkway Place Holdings Ltd v 965846 Ontario Limited (Copy Connection), 2014 CanLII 72878 (ON SCSM)

My jurisdiction under the Rules to order costs and disbursements of this proceeding outside of a contractual damage or debt claim is specifically set out in Rule 19 of the Rules. In this regard, I would refer to Oxford v. 1231766 Ontario Inc. [2011] O.J. No. 2008 (Small Claims Court) wherein the Court stated: “The Rules of the Small Claims Court fully provide for the determination of costs, subject to the exception stipulated by section 29 of the Courts of Justice Act regarding unreasonable behaviour in a proceeding.” Insofar as costs are concerned, under Rule 19.04 I may order that a successful party who is represented by counsel be awarded a “reasonable representation fee” at trial. Under Rule 19.01, I also have discretion to award a successful party its reasonable disbursements, subject to the limitations of that Rule.

Under the Rules, any power I have to award costs is subject to section 29 of the Courts of Justice Act, which limits the amount of costs that may be awarded (other than disbursements) to 15% of the amount claimed unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding. In the circumstances of this case, I find that there was no unreasonable behaviour that would allow me to exceed this 15% limit. While the defendant did not admit the portion of the claim for the 2012 year end shortfall and the $120.58 rent shortfall until trial, I find that of itself does not constitute unreasonable behaviour in this proceeding sufficient for me to exercise my discretion to penalize the defendant under section 29 of the Courts of Justice Act.