Costs Endorsement
[1] 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.
[2] When 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.
[3] Suffice to say the Plaintiff’s entitlement is now within the Small Claims Court jurisdiction.
[4] As 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.
[5] These I have received and reviewed. I am frankly surprised by the depth and volume of the material I received from both sides.
[6] 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.
[7] For their efforts in defending the claim, the Defendant would have sought fees (and HST) of $23,200.48 and disbursements of $2,207.13.
[8] I am now meant to fix the Plaintiffs’ costs such as are fair and reasonable and within the Defendant’s reasonable expectations.
[9] The 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.
[10] First, 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 |
[11] I 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.
[12] While 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.
[13] The $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.
[14] But 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.
[15] So I will place my own thumb of reasonableness on the scales here and fix those fees, including all taxes, at $13,000.
[16] That means the Plaintiff is entitled to recover a total of $14,926.57 for costs.
[17] In her transmittal letter containing her costs submissions, Ms. Chutko suggests that I may be required to intervene on the prejudgment interest question.
[18] Sloan J.’s endorsement in that regard reads: “PJI to be calculated at 5%/annum on $25,000.”
[19] I will not intervene. Sloan J.’s endorsement seems clear.