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Dentec Safety Specialists Inc. v. Degil Safety Products Inc., 2012 ONSC 6871 (Rule 76 – simplified procedure)

Judgment Released: December 4, 2012  Link to Judgment

In dealing with costs in this Simplified Procedure matter, and following a finding in favour of the Plaintiff for the tort of passing off with a damages award of $10,000, the Plaintiff sought costs in the amount of $40,452.22. The Court held the Plaintiff was entitled to its costs, because it was ultimately successful in the action. However, the Court held that the costs requested made no allowance for the fact that the action was a Simplified Procedure matter and the amount claimed for costs was disproportionate and excessive, relative to the damages ultimately awarded. The Court awarded $15,000 in costs to the Plaintiff, noting that that is an amount that the unsuccessful party could reasonably have expected to pay in this proceeding.

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Dentec Safety Specialists Inc. v. Degil Safety Products Inc., 2012 ONSC 6871 (Rule 76 – simplified procedure)

Ali v. Schrauwen, 2011 ONSC 2158 (Master) (Transfer of action from simplified procedure to small claims court)

Judgment Released: April 5, 2011   Link to Judgment

The Court allowed the Plaintiff’s motion to transfer an action, seeking damages of $31,000, from Simplified Procedure to Small Claims Court following the amendments to the monetary jurisdiction of that Court (and thereby limiting the Plaintiff’s claim to $25,000), despite the objections of one Defendant that prejudice would result because the action was “too advanced” to be transferred. Despite having prepared (but not delivered) an affidavit of documents, mediated, listed for trial and pre-tried the action, the Court agreed that there was little disruption to the trial strategy at that stage by a transfer.  The Court ordered that the Plaintiff pay the Defendant $2,800 of the $13,000 it had incurred in costs of the litigation to date, on the basis that those costs may not have been incurred had the action been transferred in January 2010 and noting that Rule 19.05 of the Small Claims Court Rules will limit the Defendant’s recovery of costs going forward.

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Ali v. Schrauwen, 2011 ONSC 2158 (Master) (Transfer of action from simplified procedure to small claims court)

Tyler v. Sannoufi, 2011 ONSC 3111 (S.C.J.) (Rule 76 – simplified procedure; Rule 53.03 – expert witnesses)

Judgment Released: May 26, 2011   Link to Judgment 

The simplified procedure Rule, Rule 76, does not specifically address the requirements for expert evidence.  If the requirements in Rule 53.03(2.1) are to be applied to the simplified procedure, some latitude must be given by the court.  Otherwise, the process could become very expensive, which is precisely the harm that Rule 76 is designed to avoid. 

Here, the defendant offered his own accountant as a expert witness.  The accountant’s affidavit contained factual and opinion evidence.  The plaintiff objected that the accountant was not impartial and did not verify the factual underpinning for his opinion. While the accountant filed a Form 53 Acknowledgement of Expert’s Duty, the plaintiff argued it could not cure the deficiencies in the evidence. The Court admitted the evidence but the weight given to the evidence was impacted by the fact that the accountant cannot be considered completely objective.

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Tyler v. Sannoufi, 2011 ONSC 3111 (S.C.J.) (Rule 76 – simplified procedure; Rule 53.03 – expert witnesses)

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

Zerucelli v. Parravano, 2010 ONSC 5293 (S.C.J.) (Rule 76 – simplified procedure)

Judgment Released:   September 29, 2010   Link to Judgment

The matter was set down for trial in 2009, when oral discovery was not permitted under simplified procedure (Rule 76).  The plaintiff brought a motion to exercise the oral discovery rights under the new Rule 76.   The Court granted the motion, permitting discovery and required the parties to prepare and agree to a discovery plan.  The Court held that even where the amount at issue is relatively small, permitting discovery could have the desirable effect of bringing the case towards settlement and making the trial shorter and more manageable.

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Zerucelli v. Parravano, 2010 ONSC 5293 (S.C.J.) (Rule 76 – simplified procedure)