2013 ONSC 5763, 2013 ONSC 5763

CITATION : Zimon v. Turnbull, 2013 ONSC 5763 DIVISIONAL COURT FILE NO.: DC-10-241 DATE: 20130926 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: James Zimon, Plaintiff/Appellant AND: Sharon Lynn Turnbull, William Peter Isherwood, Canadian Imperial Bank of Commerce and Canadian Mortgages Inc., Defendants/Respondents BEFORE: Matlow, Aston, Swinton JJ. COUNSEL: Marc A. Munro , for the Plaintiff/Appellant Dennis Touesnard , for the Defendants/Respondents Sharon Lynn Turnbull and William Peter Isherwood HEARD: at Hamilton October 31, 2012.

COSTS ENDORSEMENT [ 1 ] This endorsement addresses the costs of the trial and the appeal. [ 2 ] The plaintiff, the successful appellant on appeal, seeks costs of the trial on a substantial indemnity basis, fixed at $28,688.66. [ 3 ] The respondents submit that the appellant should receive no costs for the trial because the amount of the judgment obtained ($22,727.54 plus interest) was within the jurisdiction of the Small Claims Court at the time of the trial. However, the respondents’ submissions on costs fail to acknowledge that: (

i) When the Statement of Claim was issued in November, 2007, the Small Claims Court did not have jurisdiction in cases over $10,000 and only assumed that jurisdiction as of January 1, 2010. With or without the claim under the Construction Lien Act , R.S.O. 1990, c. C.30 , (a claim that was dismissed) it was appropriate at the time to initiate the claim in the Superior Court; (ii) By the time the plaintiff could have moved the case to Small Claims Court: (

a) The defendants had launched a $65,000 counterclaim; and (

b) Significant costs had already been incurred. (iii) The defendants sought and obtained a costs order for the original trial exceeding $30,000, even though they recovered nothing on their counterclaim. Their position now is inconsistent with their position then. [ 4 ] Furthermore, the Statement of Claim claims $23,936, barely more than the judgment for $22,727.

It was the fanciful $65,000 counterclaim that resulted in costs escalating to a level far in excess of any common sense view of the dispute. [ 5 ] Finally, we note that the plaintiff offered to settle the case for $15,000 inclusive of interest and costs by an offer that was open for acceptance for about a year and before the significant costs of the trial were incurred. While the Offer to Settle was not a Rule 49 Offer and does not attract the cost consequences mandated under that rule, it may nevertheless be taken into account.

The Offer to Settle demonstrates that there was a realistic and reasonable attempt to resolve the dispute by the plaintiff at an early stage. [ 6 ] As the successful appellant, the plaintiff also claims costs of the appeal. [ 7 ] The appeal was relatively labour intensive because of the need to delve so deeply into the evidence. However, given the amount in issue, and the costs at trial as now awarded, the costs of the appeal as claimed (more than $39,000) are exorbitant. Proportionality is a significant consideration.

The amount sought must also be significantly reduced to take into account that the appellant changed solicitors. The respondents should not have to bear the costs of the new solicitor becoming familiar with the file. [ 8 ] The appellant is entitled to costs of the trial fixed at $25,000 and costs of the appeal fixed at $10,000.

Matlow J. Aston J. Swinton J. Date: September 26, 2013