25/09/2017 – Jurisdiction Ontario
Part 60 published on 01/12/2017
Appeal Court drastically reduces cost award in Small Claims Court matter
The owner brought a claim against the condominium corporation in Small Claims Court for total damages of $2,525.14 for alleged harassment, for recovery of costs for clean-up of pigeon droppings (charged to the owner by the condominium corporation) and for recovery of costs for legal advice obtained by the owner. After a three-day trial, the owner’s claims were dismissed, and the condominium corporation was awarded costs of $20,000. [See Condo Cases Across Canada, Part 55, September 2016.]
The owner appealed. On appeal, the Divisional Court reduced the costs award to 15% of the amount claimed (15% of $2,515.14). The Divisional Court said that there was no reason that the usual cost award in Small Claims Court should not apply. The Divisional Court said:
- The indemnification provision in the condominium corporation’s declaration did not apply because the costs were not expenses “to or with respect to the common elements and all other units”.
- The Plaintiff’s behaviour during the proceeding was not so unreasonable as to justify penalizing the Plaintiff (by way of an increased costs award) under Section 29 of the Courts of Justice Act.