Citation: Irwin v. Sysco Food Services of Atlantic Canada, 2010 NSSC 341
Date: 20100910
Docket: Hfx No. 311662
Registry: Halifax
Between:
Heather Irwin
Plaintiff
v.
Sysco Food Services of Atlantic Canada
Defendant
C O S T S D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: June 16, 2010 (oral decision rendered June 23, 2010) , in Halifax, Nova Scotia
Final Written
Submissions on Costs: August 4, 2010 (defendant); August 17, 2010 (plaintiff) and August 18, 2010 (reply)
Written Decision: September 10, 2010
Counsel: Peter Landry, for the plaintiff
G. Grant Machum, for the defendant
By the Court:
[1] The defendant, who was successful at trial, seeks $9,000.00 in costs plus disbursements of $525.73. The plaintiff does not disagree with the reasonableness of disbursements. The issue is the costs award.
[2] The defendant seeks increased costs on Scale 3 for two reasons: (1) an offer was made to the plaintiff; and (2) the plaintiff could have commenced her action in Small Claims Court.
[3] The plaintiff on the other hand says that, because there was a problem with disclosure, the defendant should be disentitled from its costs or be awarded reduced costs. The defendant disagrees that there was a production of documents problem. The plaintiff relies on Kielt v. Gawne, 1993 CarswellOnt 4440 (Ontario Court of Justice (General Division)). In my view, the circumstances in that case were very different from those in this case. The judge in that case referred to the late disclosure of documents which were “vital” and “critical”. According to the submissions made to me, that was not the characterization of the documents that were disclosed by the defendant after the original affidavit of documents was provided.
[4] Based upon the material before me, I conclude that the late disclosure of some documents and technical non-compliance with the Rule with respect to the affidavit of documents is not sufficient reason to disentitle the defendant from its costs or reduce the costs award to a nominal amount as requested by the plaintiff.
[5] The defendant also says the costs should be increased because the plaintiff could have commenced her action in Small Claims Court. However, the procedures in Small Claims Court are very different and there is no requirement for the plaintiff to use it. Accordingly, I do not conclude that there should be cost consequences because the plaintiff did not commence her action in Small Claims Court. The amount of the plaintiff’s claim was very close to the maximum amount allowed to be claimed in Small Claims Court and there are no pre-trial procedures such as document disclosure or discovery available in Small Claims Court.
[6] Instead, the plaintiff chose to use what has been called the “simplified procedure” under Civil Procedure Rule 57. That Rule refers to “economical conduct” of a proceeding. There are limited pre-trial procedures including economical disclosure and economical discoveries. There were few documents in the exhibits, one short discovery of the plaintiff and the parties had agreed on the amount of damages should the plaintiff have been successful. The trial was short, less than two days including closing submissions.
[7] In my view, the Tariffs were not designed to deal with costs in the case of a trial such as this one, conducted using the simplified procedure. Built into the costs amounts in the Tariffs is the concept of full pre-trial processes, which are more extensive and, accordingly, more expensive than those in the simplified procedure. I therefore conclude, in my discretion, that a lump sum is the appropriate award in this case, rather than the amounts set out in the Tariffs.
[8] I must take into account the offer to settle that was made by the defendant two weeks before trial. The offer was to end the action without a costs award. That is a better result than the result at trial. Rule 10.03 provides that I may take such an offer into consideration in determining costs.
[9] In all the circumstances, I conclude, in my discretion,that a lump sum costs award of $5,000 plus disbursements of $525.73 is the appropriate award in this case.
Hood, J.