Justin Fall, operating as Advanced Roofing Ltd. - v. -, 2019 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2019 SKPC 66 Date: November 12, 2019 File: 15 of 2019 Location: Moose Jaw _____________________________________________________________________________ Between: Justin Fall, operating as Advanced Roofing Ltd. - and - Nancy Wollner Justin Fall For the Plaintiff Nancy Wollner For the Defendants _____________________________________________________________________________ JUDGMENT ADDENDUM IN RELATION TO COSTS DEMONG , J _____________________________________________________________________________ [ 1 ] I rendered judgment in this matter on October 17, 2019.

At paragraph 79 of my judgment, I granted leaved to allow Ms. Wollner the opportunity to identify the quantum of costs that she was seeking. That quantum calculation, and the reasons therefore, was to be served on Advanced Roofing Ltd. by November 1, 2019, and Advanced Roofing Ltd., in turn, was granted the opportunity to reply to Ms. Wollner’s claim, which in turn was to be filed with the Court by November 8, 2019. Ms. Wollner has filed and served her costs request. Advanced Roofing Ltd. has not replied. [ 2 ] Ms. Wollner seeks out-of-pocket (special) costs in the sum of $150.00.

These costs are comprised of a filing fee in the sum of

$50.00 in order to reply to the plaintiff’s claim, and a further filing fee of $100.00 in order to file her counterclaim. I consider these costs to be reasonable and award her out-of-pocket or ‘special’ costs pursuant to section 36(1) of The Small Claims Act, 2016, SS 2016, c S- 50.12 [ Act ] in the sum of $150.00. [ 3 ] Ms. Wollner also seeks general costs in the sum of $575.00. She has characterized this sum as her lost wages in having to attend both the case management conference and the trial.

The interaction of section 36(3) of the Act and section 6(3) of the Regulations made pursuant to the Act authorize this Court to make an award of general costs in favour of a party up to, but not beyond, 10% of the amount of the claim. Section 36(4) of the Regulations dictates that if a matter involves a counterclaim or third party claim a judge may choose the claim of the highest amount or value to determine the maximum costs that may be awarded. As Ms.

Wollner has been successful in offsetting the plaintiff’s claim and has been granted judgment after set-off in the further sum of $2,303.80, I calculate the amount of the counterclaim to equate to $10,911.00. [ 4 ] Section 36(3) of the Act compels the Court to consider a number of factors in assessing costs. None of these factors speak directly to lost wages. The only two considerations that are enumerated under that

section which have applicability, are, in my view, sections 36(3) (d), which speaks to offers of settlement; and 36(3)(g), which speaks to ‘any other factor that the judge considers appropriate’. Generally speaking, and all other things being equal, it is my practice to reserve an award of costs of the full 10% to those situations where one party has, prior to trial, submitted an offer of settlement to the other party and then has proven to have been entitled to more than what the offer envisaged.

This, as an inducement to have the parties take settlement offers seriously in order resolve their differences short of the need to run a trial. To my knowledge there was no existing offer to settle on the table by the end of trial. [ 5 ] In consideration of section 36(3) (g), I do note that this was a relatively difficult trial to run and was no doubt time consuming to prepare for. I am prepared to award general costs equivalent to 5% of the amount claimed, and I grant Ms. Wollner general costs in the sum of $545.55. In total, Ms.

Wollner is entitled to costs in the sum of $695.55. [ 6 ] In the result, a Certificate of Judgment shall issue in favour of Ms. Wollner in a sum totaling $2,999.35. _________________ Demong, J