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5. Orders and Judgments

(a) Overview

As mentioned before, orders and judgments are different - though very similar - things. Both are conclusive statements by the court - either orally or in writing -dealing with some or all of the legal issues before the court. "Orders" tend to deal with procedural issues only - although sometimes a procedural issue can entirely dispose of a case. "Judgments" tend to be the court's full decision on the case, made after a full trial which has heard full evidence.

Courts have broad discretion when making either an order or judgment to include terms and make directions they think are fair in the circumstances [R1.04].

(b) Orders

"Orders" of a court generally deal with procedural matters such as motions (see Ch.12: "Motions and Procedural Changes") rather than final judgment in a case.

When a motion is improperly brought or improperly resisted, it is common for a judge to require a party to pay legal costs to the other side to compensate for inconvenience or expense, or to require a party to do a specific act by a specific date to ensure proper trial preparation.

(c) Judgments

i. Overview

"Judgments" generally deal with the full issues of liability and remedy (usually damages), if any. They also, in a second stage, deal with issues of "costs" and "interest".

The usual rule is that successful parties are entitled to interest on any damages awarded, to at least partial compensation for their legal costs or inconvenience, and compensation for disbursements (eg. out-of-pocket expenses, court filing fees) made in the conduct of the proceeding.

Following are discussions of some infrequently-applied but still applicable rules regarding judgments.

ii. Family Law Act Damages

The Ontario Family Law Act (FLA) creates a class of damage claims for personal injury or death generally known as "dependent claims". These are to compensate family members for things such as loss of companionship and care-giving efforts when a family member is injured by a defendant's negligence.

Such claims are damage claims and are distinct from other family law proceedings, such as spousal or child support, which should be brought in Family Court. See the Ch.3 "Jurisdiction".

In such damage cases the court may order periodic payments of any award and will include an amount to offset income tax payable from investment of any award [CJA s.116].

iii. Periodic Payments

The Small Claims Court has a further general discretion to order monies to be paid periodically. [CJA s.28]

iv. Damages Assessed to Date of Judgment

Where a cause of action continues or recurs past the date of the commencement of the lawsuit, damages shall be assessed to the date of judgment [CJA s.117]. An example of this might where be a long-term recurring-performance contract is breached every time a periodic scheduled duty is ignored. The court will assess damages for all the breaches that occur up to the date of judgment.

In such unusual cases it is conceivable that any further breaches after the date of judgment create a new cause of action, which can ground a new lawsuit.

Distinguish this situation from one (such as a car accident) where damages continue, but not the cause of action which has occured and is past). In such a case the court would, in the first action, want to quantify (essentially "capitalize") the anticipated future damages in an fixed award for "loss of future income" or such.

While such situations could occur in Small Claims Court cases, they would be quite unusual given the low monetary cap of $25,000.

v. Pre-payment of Damages Not to be Disclosed

Any pre-payment of damages by the defendant (before judgment) will be credited to them but shall not be disclosed to the judge beforehand [CJA s.120]. The principle here is the same as that of not disclosing settlement offers to the judge until they have ruled on liability and damages (see Ch.13: "Settlement").

vi. Foreign Currency Orders

Judgments and orders for amounts of foreign currency may be obtained from the court, but will be ordered payable in an amount of Canadian currency sufficient to purchase the amount of foreign currency awarded. The rate of conversion is that used by a Schedule I Bank Act chartered bank the day before the payment, except that the court may alter that day if it would unfair not to do so. [CJA s.121]

(c1) Reasons for Decision

Orders and judgments should contain "reasons for decision" which review the evidence, make findings of fact, and interpret the applicable law so as to allow an appeal court to fully understand the decision for purposes of appeal review. The adequacy of reasons for appellate review is commonly held as the standard for the sufficiency of "reasons".

Case Notes: Capital One v Jonathan (Div Ct, 2022)

Case Note: Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231 (Ont CA, 2015)

In this case the Court of Appeal affirmed the principle that the primary test for the adequacy of reasons for decision was whether they supported appellate review, and additionally stated as follows on the role of reasons in the Small Claims Court context:

[34] The Small Claims Court is mandated under s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to “hear and determine in a summary way all questions of law and fact and may make such order as is considered just and agreeable to good conscience.” The Small Claims Court plays a vital role in the administration of justice in the province by ensuring meaningful and cost effective access to justice for cases involving relatively modest claims for damages. In order to meet its mandate, the Small Claims Court’s process and procedures are designed to ensure that it can handle a large volume of cases in an efficient and economical manner.

[35] Reasons from the Small Claims Court must be sufficiently clear to permit judicial review on appeal. They must explain to the litigants what has been decided and why: Doerr v. Sterling Paralegal, 2014 ONSC 2335 (CanLII), at paras. 17-19. However, appellate consideration of Small Claims Court reasons must recognize the informal nature of that court, as well as the volume of cases it handles and its statutory mandate to deal with these cases efficiently. In short, in assessing the adequacy of the reasons, context matters: Massoudinia v. Volfson, 2013 ONCA 29 (CanLII), at para. 9. Just as oral reasons will not necessarily be as detailed as written reasons, reasons from the Small Claims Court will not always be as thorough as those in Superior Court decisions. Failing to take the Small Claims Court context into account only serves to restrict access to justice by unnecessarily imparting formality and delay into a legal process that is designed to be informal and efficient.

The court also held that insufficiency of reasons was an error of law subject to appellate review on a 'correctness' standard, and that an appropriate remedy for insufficiency of reasons was the ordering of a new trial.

Case Note:
The adequacy of reasons for judgment was also commented on in the case of Loans Till Payday v. Brown (Div Ct, 2010), as follows:

[16] In considering the adequacy of reasons, the reviewing court must consider the day-to-day realities of the decision-making body. The Small Claims Court is mandated to hear and determine questions of law and fact “in a summary way” (Courts of Justice Act, s. 25). The volume of cases it receives makes it the busiest court in Ontario (Coulter A. Osborne, Civil Justice Reform Project, November 2007). A Small Claims Court judge cannot be expected to provide lengthy reasons for his or her decision in every case.

[17] That does not mean, however, that the Small Claims Court judge is relieved of any requirement to provide reasons. As Goudge J. wrote in Clifford v. Ontario Municipal Employees Retirement System (2009), 2009 ONCA 670 (CanLII), 98 O.R. (3d) 210 (C.A.):

[R]easons must be sufficient to fulfill the purposes required of them particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review....[T]he “path” taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.

(d) Satisfaction of Orders and Judgments

An order may be obtained confirming that an order or judgment debt has been satisfied. See Ch.16, s.6: "Collection: Satisfaction of Debts").


6. Interest

(a) Overview

A successful party is usually entitled to interest on any money awards. Interest comes in two types: "pre-judgment" (from date cause of action arose to date of judgment) and "post-judgment" (from date of judgment to date of payment). Each has different interest rates which are set by law on a quarterly basis (exceptions are explained below).

Interest calculations for a money award use the rate current in the quarter year that the date the cause of action arose (for pre-judgment interest), or at the date of judgment (for post-judgment interest). Some exceptions and variations apply depending on the compensatory purpose of all or parts of the damage award, and courts have discretion to vary interest application in individual cases before them [discussed in (d) below].

The exceptions greatly confuse the law of interest because the terminology used in the law to describe the purpose of damages is highly inconsistent. I will do the best I can to present a coherent picture within this confusion. Note however that it is common Small Claims court practice to "ball-park" interest calculations, simplifying the complexities of what follows - particularly with respect to "special" or "past pecuniary" damages.

Charts of rates and examples follow below.

(b) Pre-Judgment Interest

. Overview

Pre-judgment interest runs from the date the cause of action arose to the date of judgment. It is not automatically granted but must be claimed in a statement of claim by the plaintiff, just like damages or legal costs are claimed [CJA s.128(1)].

Subject to the exceptions explained below, the pre-judgment interest rate is set by law for quarterly periods (ie. every three months) according the chart linked below. Select the rate that applies to the date of your cause of action and that becomes the fixed pre-judgment interest rate for your case (unlike the chart, the rate for your case does not change every quarter).

The Attorney-General's website has a chart setting out the pre-judgment interest rates by quarter-year since 1990 (note that this webpage includes charts for both pre- and post-judgment interest rates, so be careful to distinguish them):

Pre-Judgment Interest Rates.

. A Note About "Damages" Terminology

As will be seen below, different methods of pre-judgment interest rate calculations are used for different types of damage. Unfortunately - as mentioned - the terminology used to categorize damages types is surprisingly ambiguous. This note is an attempt to impose some order on this confusion.

Recall in Ch.8 "Pleadings" that the categories of damages discussed were: "general", "special" and "pain and suffering" (and sometimes "punitive"). These are terms drawn from the common law and used by lawyers and judges as accepted terms of practice. However, the categories discussed in the legislation [Courts of Justice Act, s.128] - for the purposes of pre-judgment interest calculation - are: "pecuniary", "past pecuniary" and "non-pecuniary". Thankfully the terms "exemplary" or "punitive" damages are the same in both areas of discussion.

Hopefully the following note will clarify the various terminology uses:

PAST PECUNIARY DAMAGES (also "special damages", "liquidated damages" or "expenses"): these are expenses of the plaintiff incurred in a reasonable effort to reduce and reverse the effects of the defendant's wrong-doing, other than replacement of lost property. Typically these are expending after the cause of action has occured and are easily calculated by means of receipts.

PECUNIARY DAMAGES (also "general damages"): losses - not expenses - capable of calculation by deductive reasoning from such things as prior trends of profit or income, and by valuation of lost property. Most damages are pecuniary damages.

NON-PECUNIARY DAMAGES (also "pain and suffering"): Damages assessed to compensate for physical and mental pain and suffering. Incapable of determination from any application of arithmetic as they lack any inherent relationship to money.

EXEMPLARY OR PUNITIVE DAMAGES:
These are not true damages as they are not ordered to compensate for loss or expense, but are ordered to "punish" egregious behaviour by the defendant. They much more akin to a "fine" which just happens to be made payable to the plaintiff. The law of punitive damages is extensive and will not be covered here other than to note that they are awarded much less frequently than most small claims court litigants would expect. The standard for obtaining an award of punitive damages is quite high and usually involves intentional malicious harm, or gross negligence.

Examples to explain the calculations for the different types of damages are set out below. Most actual cases will involve two or more different types of damages, involving separate calculations for each type.

. Pecuniary (General) Damages Calculation

A "simple" example of pre-judgment interest rate calculation would be as follows:

On 17 June 2002, defendant neighbour sets grass fire which burns down plaintiff neighbour's car garage. Defendant held liable in negligence for full replacement cost of garage in amount of $8,000 by judgment dated 07 September 2004.

The pre-judgment interest rates at the date of breach (2nd quarter of 2002) was 2.3 percent.

The period of calculation is:

17 June 2002 to 07 September 2004: 2 years, and 82 days .... or 2.22 years

$8,000 x .023 x 2.22 yrs = $408.48

The amount of $408.48 will be added as a lump sum to the judgment for pre-judgment interest.

. Past Pecuniary Damages (Special Damages)

"Special damages" (past pecuniary damages) are an exception to the "simple" method set out in the above example. Section 128(3) of the Courts of Justice Act sets out that interest on damages for "past pecuniary loss" is calculated on the total past pecuniary loss incurred at the end of each six month period, and then finally again at the date of judgment.

The idea behind the different treatment is that because special damages tend to be incurred periodically after the cause of action occurs, calculating full interest from the date of the cause of action would be over-compensatory. The result is that an awkward "running" total calculation must be made. In practice, Small Claims court judges often "ball-park" this calculation for convenience.

An example of the calculation of special damages is as follows:

A tenant is illegally evicted from their apartment 01 May 2003. In the following months they incur out-of-pocket expenses ("special damages") for moving and storage of their furniture and personal property, motel expenses, change of address, etc., as follows:

• immediate moving expenses that day of $500;
  
  
• hotel expenses for the next three months at $1000/month;
  
  
• property storage for the next year at $100/month.

Judgment in favour of the plaintiff is issued 01 August 2004 (1.25 years later).

At the end of the first six month period after the cause of action (01 November 2003) the total special damages are:

Moving $ 500
Motel (3 mos) $ 3000
Storage (6 mos) $ 600
------
TOTAL $ 4100

The pre-judgment rate at 01 November 2003 (4th quarter) is 3.3 per cent.

$ 7100 x .033 x .5 yrs = $ 67.15

The interest on special damages for the first six-month period is $ 67.15. This is added to the judgment as a lump sum.

At the end of the second six month period after the cause of action (01 May 2004) the TOTAL (remember this is an accumulating total) special damages are:

Moving $ 500
Motel (3 mos) $ 3000
Storage (12 mos) $ 1200
------
TOTAL $ 4700

The pre-judgment rate at 01 May 2004 (2nd quarter) is 2.8 per cent.

$ 4700 x .028 x 0.5 yrs = $ 65.80

The interest on special damages for the second six-month period is $ 65.80. This is also added to the judgment as a lump sum.

From the end of the second six month period to the date of judgment (01 August 2004, or three months further on) no additional special damages are incurred so the total special damages is still $ 4700.

The pre-judgment rate at 01 August 2004 (3nd quarter) is 2.3 per cent.

$ 4700 x .023 x 0.25 yrs = $ 27.03

This also is added to the judgment as a lump sum.

The TOTAL pre-judgment interest for special damages, which are added to the judgment as a lump sum, is therefore:

1st six-month period 67.15
2nd six-month period 65.80
Residual period before Judgment 27.03
------
159.98

This sort of calculation (especially when the numbers aren't so neat) is a lot of work, and judges hate doing it. In the Superior Court parties are required to have prepared and file a "Schedule of Special Damages" (with copies of invoices and proof of payment attached) at least ten days before trial [RCP 25.06(9)], which summarizes the expenses by amount and date. This greatly facilitates calculation of special damage totals and interest.

In order to avoid judicial frustration, Small Claims court plaintiffs are STRONGLY encouraged to do the same. If you are especially confident you could even include your interest calculations. A neat and credible Schedule of Special Damages will very likely be accepted as authoritative.

Otherwise courts will often round off and assign rough estimates based on what invoices are provided to them. Practically, verbal evidence alone of such expenses is much less likely to be accepted.

. "Non-Pecuniary" Damages

"Non-pecuniary" damages for personal injury (ie. "pain and suffering" awards), as distinct from compensation for expenses and "pecuniary" monetary or property loss, are calculated much more simply.

The rate is fixed at 5%, not by a constantly changing chart [RCP R53.10] [CJA 128(2)]. It will normally be calculated from the date of injury to the date of judgment, unless the conditions of the injury significantly vary over time.

Thus pre-judgment interest on a $5000 pain and suffering award from an accident occuring 01 July 2003, with judgment issued 01 January 2005, would be calculated as follows:

$ 5000 x .05 x 2.5 years = $625.00

The amount of $625 will be added to the judgment as a lump sum.

. Where No Pre-Judgment Interest Applies

Some awards do NOT attract pre-judgment interest at all [CJA s.128(4)]. Be careful to distinguish these damages from those already discussed.

• exemplary or punitive damages;
  
  
• pre-judgment interest (ie. no compound interest or "interest on interest");
  
  
• cost awards;
  
  
• damages for future pecuniary loss (eg. loss of future income) (these are awarded in the judgment as an estimate of future loss - they do not increase or decrease based on changed future facts unless you go back to court to change the judgment);
  
  
• amounts that have been paid by the defendant, from the date of such payment;
  
  
• consent judgments, except where the debtor consents to interest accruing (these are judgments imposed by the court with the consent of the defendant, not after a full adversarial trial);
  
  
• interest calculated by agreement of the parties (eg. where a breached contract determines a rate of interest for damages later determined, no further interest accrues on that "agreed" interest).

(c) Post-Judgment Interest

Thankfully, calculating post-judgment interest is much simpler than pre-judgment interest.

This is the rate of interest that applies to money judgments from the date of judgment forward. Like pre-judgment interest, post-judgment interest is established by law for quarterly periods (ie. every three months). The interest rate for any particular judgment (unlike the chart) does not change every quarter but is fixed at the date of judgment according to the chart.

Calculation of post-judgment interest is usually just a matter of looking up the applicable rate at the date of judgment, and then applying this calculation to the total award amount (which includes judgment, pre-judgment interest and costs) until final recovery of all the money owed is achieved - just like a regular simple loan.

The Attorney-General's website has a chart setting out the post-judgment interest rates by quarter-year since 1985 (note that this webpage includes charts for both pre- and post-judgment interest rates, so be careful to distinguish them):

Post-Judgment Interest Rates.

Unlike pre-judgment interest, post-judgment interest does not have to be "pleaded" -that is, it will be applied automatically to the judgment unless the court orders otherwise [CJA s.129(1)].

As noted, post-judgment interest - unlike pre-judgment interest - also applies to cost awards and to accumulated pre-judgment interest.

Where periodic payments are ordered, post-judgment interest only starts to accrue when such payments are late [CJA 129(2)]. Calculations in these case can be messy.

The regular post-judgment interest rules may not apply in the following circumstances:

• where the court's judgment or enforcement is based on the order of a court outside of Ontario (then the interest law of the out-of-Ontario order applies) [CJA 129(3)];
  
  
• where a right to post-judgment interest is established otherwise than by the regular court rules (eg. by contract between the parties) [CJA 129(5)].

(d) Judicial Discretion to Vary Interest Treatment

Where a court, considering any of the following, considers it just to do so, it may change (or even disallow) either pre-judgment or post-judgment interest rates, or change the period that interest is allowed [CJA 130]:

• changes in market interest rates;
  
  
• the circumstances of the case;
  
  
• any advance payments made (which will of course be credited and this reduce the debt; this provision refers more to the good intentions of the defendant in meeting their obligations);
  
  
• the circumstances of medical disclosure by the plaintiff (where relevant, as in a personal injury case);
  
  
• the amount claimed and the amount recovered in the proceeding (ie. relative success);
  
  
• the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding (ie. petty and vindictive behaviour tends to attract judicial attention in this regard); and
  
  
• any other relevant consideration.

7. Costs

(a) Overview

"Costs" are compensation to a party for legal expenses incurred in the conduct of a case. The rough rule is that they "follow the result", or tend to be awarded to the successful party, payable by the unsuccessful party and added to the judgment total.

Costs can be assessed at final judgment, but also at pre-trial proceedings such as motions or settlement conferences. Sometimes the court will defer assessment of costs for preliminary proceedings until final judgment (called "costs in the cause"). The handling of costs in these preliminary proceedings is discussed in the sections dealing with those proceedings.

You may have heard of the terms "party-party" or "solicitor-client" costs. These were cost scales (previously, now replaced) used in the Superior Court, and are not applicable to Small Claims court. When deciding the costs to be awarded against an unsuccessful appellant, the court in Cosentino v Roiatti (Ont Div Ct, 2007) explained the law of costs in Small Claims Court as follows:

[13] I am guided by the overriding principle that in determining costs the result must be fair, reasonable and within the reasonable expectations of the parties. Determination of costs is not simply a mathematical exercise or mechanical calculation. See: Moon v. Sher 2004 CanLII 39005 (ON CA), (2004), 246 D.L.R. (4th) 440 (C.A.) and Boucher v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291 (C.A.).

[14] Further, I am in agreement with the statement of the court in Culligan Springs Ltd. [v Dunlop Lift Truck (1994) Inc [2006] O.J. No. 1667] that the principle of proportionality is relevant whether it is the plaintiff or the defendant who was successful. Costs payable by the losing party must be reasonable and proportionate to the amount in dispute.

Cost awards do not usually fully compensate a party for their legal expenses, particularly if they have hired someone to represent them. Partial compensation is the rule. Compensation for "disbursements" however does tend to be close to complete, as is discussed below.

On top of that the court has a further discretion to vary costs treatment if it sees fit [CJA 131(1)] [R19]. This can even be used in unusual cases to award costs to unsuccessful parties.

As a means of encouraging settlement of cases, cost rules are integrated with settlement rules such that unreasonable settlement behaviour may be punished in cost awards. These rules are discussed below: "Cost Consequences of Refusing a Reasonable Offer".

In the rare cases where the governments of Ontario or Canada are a legal party in the proceeding, they are entitled to costs as well under the usual rules [CJA 131(2)] even though their lawyers are salaried.

Case Note: Kuzev v. Roha Sheet Metal Ltd
In Kuzev v. Roha Sheet Metal Ltd (Div Ct, 2007) the Divisional Court set out basic principles of cost awards in Small Claims Court:

[4] It is just common sense to observe that it is a fact of life that small cases cannot carry large fees. If a $4,000 case is appealed, neither side can reasonably spend $6,000 on it and expect that the other side will indemnify them. A review of my reasons for judgment will show that there were a number of issues canvassed which were not frivolous or ill-conceived, but were nevertheless unsuccessful. Even if a case has little merit, that alone does not justify substantial indemnity costs: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3. This is not a case for substantial indemnity costs.

[5] Even on a partial indemnity costs scale the amount sought, while the product of hours spent and a reasonable hourly rate, is nevertheless unreasonably high. It is out of proportion to the amount at stake and well beyond the reasonable expectations of persons involved in a $4,000 Small Claims Court appeal. The right of appeal is given by statute and must not, in effect, be taken away by prohibitive costs orders.

[6] Finally, I ask the question: At the end of the day, is the total for fees and disbursements a fair and reasonable amount to be paid by the unsuccessful parties in the particular circumstances of this case?[1] This is the major guiding principle in the fixing of costs, as reiterated by Borins J.A. for the Court of Appeal in Moon[2] where he observed that the case law established that such an award must:

…reflect “more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant”. This is a fundamental concept in fixing or assessing costs.

[7] Borins J.A. went on to observe that such an amount is not arrived at arithmetically, but by determining what is fair and predictable. The paying party must not be faced with an award that does not reasonably reflect the amount of time and effort that was warranted by the proceedings. (emphasis added).

[8] In my view an award of $2,500 plus disbursements of $351.47 reflects these principles, and I so order.

(b) Regular Small Claims Costs Rules

These "regular costs rules" are just the basics. They are subject to an overall "costs cap", the rules regarding settlement offers (both discussed below), and the discretion of the court within these rules to award costs as it sees fit.

These 'regular' rules apply to the participants in an action as follows:

• Self-Represented: a maximum of $500 for "inconvenience and expense" [R19.05].
  
  An argument exists that the term "expense" used here excludes the possibility of a self-represented party also being compensated for 'disbursements' [discussed in (e) below], as the conventional use of the term "disbursement" is almost identical with that of "expenses". However that result would be unjust to unrepresented parties against represented ones. I would be interested to see any case law on this point.
  
  
• Lawyers, Law Students and Paralegal: a "reasonable representation fee at trial or at an [damage] assessment hearing" [R19.04].
  
  Note that this rule only applies to costs to be ordered at trial and (damage) assessment hearings. Costs on other attendences are addressed in other rules, for example motions [R15.07] and settlement conferences [R13.10].

The assessment of "costs" is usually a process of rough "ball-parking" by the court. Parties can expect the court to inquire of the lawyer, agent or law student as to their actual bill (a final copy of which should be available at trial), and to cut this down to something tolerable in light of the amount at stake and the effort required in the case.

A significant factor to be assessed is whether "a party unduly complicated or prolonged an action or has otherwise acted unreasonably" in the proceedings. This factor applies generally to the assessment of costs in favour of self-represented parties and those represented by agents or law students [R19.06].

There is case authority for the proposition that lawyers, when defending themselves personally, are entitled to cost awards as though they were counsel in their own cases: Fellowes McNeil v Kansa General International Insurance 37 OR (3d) 464 (OCJGD, 1997).

It is interesting to note that, pursuant to R57.05 of the Rules of Civil Procedure (rules of the Superior Court), where a case brought in that court results in an award that is within the monetary jurisdiction of the Small Claims Court (ie. under $25,000), the court may deny a cost award even to the successful party. Obviously this is an incentive to keep the higher court free from small quantum cases and to discourage highly speculative claims.

(c) Overall "Costs Cap"

As noted above, the regular cost rules in Small Claims Court, are subject to a general overall limitation that costs shall not exceed 15% of the amount claimed (not awarded) of value or property sought in the proceeding "unless the court considers it necessary in the interests of justice to penalize a party or a party's representative for unreasonable behaviour in the proceeding" [CJA s.29; R19.02].

This cap does not apply to compensation for disbursements, which are assessed separately [in (e) below].

Two Divisional Court cases [Bird v Ireland (Ont Div Ct, 2005) and Transport Training Centres of Canada v Wilson (Ont Div Ct, 2010)] hold that, absent a finding of such misbehaviour (as CJA s.29 contemplates), the 15% cap cannot be exceeded - despite the settlement cost sanctions rules which sometimes allow for double costs [R14.07]. A case to the contrary on this point is Barry Trim v Heath (Ont Div ct, 2010), though I find the reasoning is unconvincing.

In the case of Stewart v. Toronto Standard Condominium Corporation No. 1591 (Div Ct, 2014) the court granted a judicial review application of a trial cost award [which is rarely granted, see Ch.17, s.2(b)]. However the Divisional Court made it clear that only grounds of natural justice, jurisdiction and bias would give it jurisdiction to do so. Here it found a jurisdictional issue when (in considering CJA 29) the deputy-judge below wrongly took into account the pre-litigation behaviour of a party in awarding more than 15% of the award amount as costs:

[6] The issue remains whether the deputy judge acted within her jurisdiction to make an award of costs of $1,500 plus disbursements of $500 against the applicant. Section 29 of the Courts of Justice Act, R.S.O. 1990, c. C.34 limits an award of costs, other than disbursements, in a Small Claims Court matter to 15% of the amount claimed “unless the court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behaviour in the proceeding”. Rule 19.06 of the Small Claims Court rules provides that “if a party has unduly complicated or prolonged an action or has otherwise acted unreasonably”, the court may order an amount as compensation for that conduct.

[7] In my view, rule 19.06, when it refers to “otherwise acting unreasonably”, must be interpreted as referring to the conduct of a party within the proceeding. The rule is not intended to give the Small Claims Court a broad and unfettered discretion to make awards of compensation regarding the conduct of a party that is unrelated to the matter over which the Small Claims Court has jurisdiction. This interpretation is also consistent with the wording of s. 29 of the Courts of Justice Act, to which all of the Small Claims Court rules are subject, that makes it clear that the conduct to be considered when assessing a penalty is conduct in the proceeding.

(d) Cost Consequences of Refusing a Reasonable Offer

As noted above, the Court has integrated settlement offer rules with cost rules to create an incentive for early settlement of proceedings, to avoid the need for a trial. (see Ch.13: "Settlement" for fuller details)

Thus, where an plaintiff's offer to settle is made at least seven days before trial starts, is not withdrawn and is not accepted, then [R14.02] [R14.07(1)] the court may award the plaintiff up to twice the costs of the action, if the judgment is as or more favourable to the plaintiff as the offer.

And, where a defendant's offer to settle is made at least seven days before trial starts, is not withdrawn and is not accepted, then [R14.02] [R14.07(2)] the court may award the defendant up to twice the costs awardable to a successful party, if the judgment is as or less favourable to the plaintiff as the offer.

Further, where awards made under these incentive rules are made to as "self-represented" party, the court may add an amount up to $500 as compensation for "inconvenience and expense" [R14.07(3)] - this appears to be in addition to the similar $500 maximum that can be awarded under R19.05 (discussed above).

(e) Disbursements

Traditionally, "disbursements" are out-of-pocket expenses necessarily incurred in direct relation to the conduct of the proceeding, paid by a party either to the court or to various service providers. They can include: court filing fees, expert reports, photocopying, witness fees and travel costs, service expenses, sheriff and bailiff fees and disbursements re enforcement, and other out-of-pocket expenses.

As of 01 January 2011 however [Reg 440/10], this list has been expanded to include the expense of "preparing a plaintiff's or a defendant's claim or a defence", to a maximum of $100 [R9.01(4)]. This change is a qualitative change from cost rules in the higher courts where such legal work would normally be included within legal fees.

A party who is successful in the case and who receives a favourable costs award (above) can usually expect an additional order that their disbursements (including those incurred in relation to electronic filing and issuance) be paid by the unsuccessful party almost automatically [R19.01(1)(1.1)]. However, a request for compensation for "disbursements" should be expressly pleaded in any Claims (see Ch.8 "Pleadings").

Unsuccessful parties will usually have to bear the cost of disbursements themselves.

A listing of most court-related fees and expenses is found in Ch.18 "Court fees"; items that are not listed will be assessed at their actual expense (if reasonable) - eg. expert witness reports. The assessment of the precise amount of "disbursements" is normally left to a court clerk [R19.01(2)]. In the event of dispute or uncertainty however a referee (see Ch.2, s.4 "The Court: Referees") may consider the matter, though they may not make an order in the matter, but will report their findings and make recommendations to a deputy-judge or judge who then has authority to confirm the total to be included in the judgment [R21.01(1)].

To facilitate this process, successful parties should do their own disbursements calculations and make submissions to the clerk in writing (with copies of receipts) immediately after the judge's order is made.

In contrast to legal costs, disbursements tend to be compensated in full. Any party hoping for a favourable disbursements order should also have receipts, invoices and cancelled cheques at hand - and organized as to totals and category - in case the court inquires as to them during the hearing. Generally however the court will simply order 'disbursements' to be paid by one party to another, with the specific amount left to be determined by the court clerk as above.

Expenses for service of documents (to a maximum of $60 for each person served) may be allowed - "unless the court is of the opinion that there are special circumstances that justify assessing a greater amount" [R19.01(3)], and actual costs for service of a defendant served outside of Ontario may be allowed [R8.05].

"Disbursements" does not include compensation for lost wages or loss of profit for time taken by parties or witnesses to participate in the legal proceedings. The only compensation of this nature would be as mentioned above under the regular cost rules for unrepresented parties ("inconvenience and expense", as above under R14.07 and R19) or witness fees (see Ch.18: "Court Fees") - and only under the circumstances set out there. Note that some local courts schedule trials on weekday evenings for the convenience of work schedules - inquire as to local practice.

After judgment, additional enforcement fees paid to bailiffs and sheriffs should be progressively added to the judgment amount by the bailiff or sheriff's office, as the case may be.


8. New Trial

Within 30 days after a final trial judgment [R17.04(1)], a party may make a motion (see Ch.12: "Motions and Procedural Changes") to the court for a new trial on any of the following grounds [R17.04(5)]:

• there was a purely arithmetical error in the determination of the amount of damages;
  
  
• there is relevant evidence that could not reasonably have been expected to be available to the party at the time of the first trial.

Note:
Amendments made in 01 July 2006 removed justified 'non-attendence (by a party) at trial' as a ground for granting a new trial. Such situations should now be dealt with by way of a motion to set aside or vary judgment [see s.4(c) "Non-attendence by a Party or Parties", above].

Note that any motion for a new trial made after judgment that has been signed (by the court or the judge) must be served on all parties - INCLUDING those who have been noted in default [R15.01(6)].

If satisfied that any of the proper grounds exist, the court may grant a new trial or replace the judgment with their own, otherwise it will dismiss the motion
[R17.04(4)].

On such a motion (in addition to the motion materials required as per Ch.12: "Motions and Procedural Changes") the moving party should also serve on all parties - and file with the court - proof that a transcript of the reasons for judgment and of any other portions of the proceeding that are relevant have been requested by the party [R17.04(2)]. Such transcript, if available, should be served on all parties and filed with the court at least three days before the trial (and preferrably as soon as it becomes available) [R17.04(3)].

Inquire of the court clerk as to: how to contact the court reporter, payment terms (fees are paid directly to the court reporter) and what form of "proof" of ordering will be required (ie. letter or affidavit). Seek the transcripts promptly. Usually you should order sufficient copies of the transcript for the court (original), yourself and all parties who have to be served - (although the court may allows service of photocopies of the transcript on other parties - again, inquire as to local practice).