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2186080 Ontario Inc. v. 1009558 Ontario Limited, 2012 ONSC 2593 (Div. Ct.) (Rule 1.04 – proportionality)

Judgment Released: April 30, 2012  Link to Judgment

The Divisional Court denied leave to appeal the decision of a Superior Court decision where the Judge denied a motion for a further and better affidavit of documents. The Superior Court Justice denied the motion because, regardless of whether or not the original affidavit of documents was deficient, the Court found the moving party had all documents appearing in any way relevant.  In denying leave, the Divisional Court held that the Superior Court Justice’s order was, among other things, proportional under Rule 1.04(1.1).

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2186080 Ontario Inc. v. 1009558 Ontario Limited, 2012 ONSC 2593 (Div. Ct.) (Rule 1.04 – proportionality)

CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Judgement Released: November 7, 2011   Link to Judgment

In upholding an award of partial indemnity costs said to be “virtually the same” as a substantial indemnity award, the Court of Appeal held, among other things, that “while the trial judge did not specifically refer to R. 1.04(1), and while there may be some disproportionality in the amount of costs awarded, the trial judge’s reasons make it clear he had the proportionality principle in mind.”

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CIA Inspection Inc. v. Dan Lawrie Insurance Brokers Ltd., 2011 ONCA 706 (rule 1.04 – proportionality)

Paul v. Pizale, 2011 ONSC 3490 (S.C.J.) (Rule 1.04 – proportionality; Rule 31.06 – scope of examination)

Judgment released: June 8, 2011   Link to Judgment

In this appeal to a judge of the Superior Court, the Court used Rule 1.04(1.1) as an alternative ground for upholding a Master’s ruling that certain questions asked on discovery were not relevant.

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Paul v. Pizale, 2011 ONSC 3490 (S.C.J.) (Rule 1.04 – proportionality; Rule 31.06 – scope of examination)

Hayes v. Silva, 2011 ONSC 3109 (Master) (Rule 1.04 – proportionality)

Judgment Released: May 20, 2011   Link to Judgment

Even before the principle of proportionality was incorporated into the Rules of Civil Procedure, it was an was an intrinsic component of the Construction Lien Act by virtue of section 67(1) (“[t]he procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question”) and section 86(2) (“[w]here the least expensive course is not taken by a party, the costs allowed to the party shall not exceed what would have been incurred had the least expensive course been taken”). Read together these provisions express the expectation that lien proceedings will be streamlined and proportionate to the matters in issue.

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Hayes v. Silva, 2011 ONSC 3109 (Master) (Rule 1.04 – proportionality)

Pirbhai v. Singh et al., 2011 ONSC 1366 (S.C.J.) (Rule 76 – simplified procedure, Rule 1.04 – proportionality)

Judgment Released:  March 2, 2011 Link to Judgment

The Court granted the plaintiff  judgment against the defendants in the sum of $33,465.77 as damages for breach of contract, deceit and misrepresentation regarding the purchase of a Lexus (described by the Court as “the most expensive Lexus motor vehicle in the world”) and the further sum of $50,000 for punitive damages. In awarding the plaintiff his costs fixed in the amount sought ($131,211.74, all-inclusive) and a further award of $2,000 for the costs hearing, the Court reasoned that a high costs award is appropriate in some cases to dissuade abuse of the justice system. The Court rejected the submission that the costs awarded should be proportionate to the amount recovered noting “I see nothing wrong with costs being awarded in an amount sufficiently high to discourage liars, fraudsters and cheats from seeking refuge in the legal system. A trial should be an unpleasant experience for such litigants.”  Further, the Court rejected the argument that the plaintiff should be penalized for not having brought the claim under Rule 76, reasoning that at the time the claim was brought, in July of 2000, the monetary threshold of Rule 76 was $25,000 and the plaintiff was thus free to bring the claim under the ordinary regime.  Further, the Court noted that since the statement of claim was amended mid-trial, once the fraud of the defendants had come to light, such an amendment would have been a difficult issue to try in the simplified procedure regime.

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Pirbhai v. Singh et al., 2011 ONSC 1366 (S.C.J.) (Rule 76 – simplified procedure, Rule 1.04 – proportionality)

Small Claims Court, Simplified Procedure and Proportionality

Small Claims Court, Simplified Procedure and Proportionality discusses the changes, effective January 1, 2010, to the Ontario Rules of Civil Procedure and cases that have arisen out of the amendments to the Rules that relate to the monetary jurisdiction of the Small Claims Court, the amendments to the Simplified Procedure regime and proportionality.  The paper also discusses cases dealing with awards of costs and transferring cases between Simplified Procedure and the Small Claims Court.

Tiffany Soucy, co-Editor of the FMC Blog on the Amendments to the Rules of Civil Procedure will be speaking at the Ontario Bar Association Civil Litigation Institute 2011 CPD Program, The New Rules: One Year On on Friday, February 5, 2011.

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Small Claims Court, Simplified Procedure and Proportionality

Loreto v. Little, 2010 ONSC 5993 (S.C.J.) – (Rule 1.04(1.1) – proportionality)

Judgment Released: November 1, 2010  Link to Judgment

Following a “somewhat technical” but not “complex” procedural motion to stay 192 separate assessments and actions by which the plaintiff sought compensation for work allegedly done within his legal practice, the successful defendants sought costs of $47,289.71.   The Court held the claim was too high on its face and inconsistent with the principle of proportionality.   After analyzing the work performed, the Court awarded costs of $15,753.48 plus certain taxes.

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Loreto v. Little, 2010 ONSC 5993 (S.C.J.) – (Rule 1.04(1.1) – proportionality)

McHardy v. Ball, 2010 ONSC 5321 (S.C.J.) (Rule 1.04 – proportionality)

Judgment Released: September 27, 2010   Link to Judgment

The plaintiffs sought production of studies possessed by the defendant city for review by the plaintiffs’ expert.  The studies bore on whether a break-away traffic pole should have been installed at a certain intersection.  The defendant opposed the motion and sought, as an alternative, to cross-examine the plaintiff’s expert on the motion under Rule 39.03.  The Court granted the plaintiffs’ motion and stated that given Rule 1.04(1) “the request to examine the plaintiff’s expert on a simple documentary productions motion is entirely out of proportion to the matters at issue.”

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McHardy v. Ball, 2010 ONSC 5321 (S.C.J.) (Rule 1.04 – proportionality)

SIPGP No.1 Inc. v. Eastern Construction Company Limited, 2010 ONSC 2695 (Master) (Rule 1.04 – proportionality)

Judgment Released: May 7, 2010   Link to Judgment

A costs order under section 86 of the Construction Lien Act is made in the court’s discretion and may be made on a substantial indemnity basis subject to section 86(2), stating that the costs allowed to a party shall not exceed what would have been incurred had that party taken the least expensive course.  Under section 67(3) of the Construction Lien Act, the Rules apply to Construction Lien Act proceedings except where inconsistent.  The Court held that Rule 1.04(1.1), to the extent that it is mandatory, is inconsistent with and impinges on the discretion granted in section 86.  The Court held that proportionality is nonetheless a non-binding factor which can be considered in exercising its discretion as to costs, similar to the limitation set out in section 86(2).  The Court stated that costs should be proportionate to the importance and complexity of the issues and the amounts involved.

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SIPGP No.1 Inc. v. Eastern Construction Company Limited, 2010 ONSC 2695 (Master) (Rule 1.04 – proportionality)

Tucci v. Pugliese, 2010 ONSC 2144 (S.C.J.) (Rule 1.04 – proportionality)

Judgment Released:  June 7, 2010   Link to Judgment

Where the defendants claimed to have spent $2,129.45 on their unsuccessful motion for summary judgment, it was disproportionate to then claim $9,546.28 in costs for successfully resisting the plaintiffs’ motion for leave to appeal the plaintiffs’ costs award on the summary-judgment motion. 

The principle of proportionality should not have led the plaintiffs to expect to pay a small fraction of $2,129.45 if they were unsuccessful in their motion for leave to appeal.  However, it was reasonable for the plaintiffs to expect that, because the defendants had spent a modest amount of time in their motion for summary judgment and the amount at stake in the motion for leave to appeal was small ($9,800), the costs would not exceed the cost of a standard motion of this kind (approximately $3,500).

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Tucci v. Pugliese, 2010 ONSC 2144 (S.C.J.) (Rule 1.04 – proportionality)