There are never any guarantees that the Trial Deputy Judge will render a decision in any one party’s favour so decisions have to be made on whether or not to commence the lawsuit or proceed with the next step of the lawsuit taking into account the possible costs consequences. Costs considerations are determined by the Rules of the Small Claims Court.
There are court filing fees to file a Claim or Defence and for most steps in a proceeding such as filing a motion, requesting a Trial (or Assessment Hearing) date be set, and taking steps to enforce a judgment … basically every step except the Settlement Conference. The number of steps in a proceeding varies from case to case as the parties conduct the proceedings.
There are also fees and allowances that you must pay to witnesses you have summoned for their attendance and travel to court, if necessary. Your case may require the hiring of an expert to provide written opinion/report and/or appear in court to provide testimony. An expert report with testimony can cost thousands of dollars.
In addition, you will have to pay for any interpreters you or your witnesses require, other than bilingual (English or French) interpretation and visual language interpretation as may be required in your particular matter.
All of these costs must be taken into consideration in commencing or defending an action in the Small Claims Court and when considering whether to take the next step.
At conclusion of Trial, a successful party can ask that the other party be ordered to pay his or her costs. It is only after rendering the decision on liability and amount for the Judgment that the Deputy Judge will also hear submissions and render a decision on the amount of costs to be paid by the unsuccessful party to the successful party. At that time, the Deputy Judge can be informed as to whether or not there were Offers to Settle by either party and whether or not that Offer to Settle was “beaten”. These offers are, unless otherwise specified, all-inclusive offers – meaning the principal amount, interest and costs are all covered in the Offer.
As an illustrative example: A Plaintiff’s Claim is filed and served in the amount of $20,000. At the end of the Trial, the Deputy Judge will be making a decision between $0 and $20,000. In this example, the Plaintiff makes an Offer to Settle to accept the sum of $15,000 from the Defendant and the Defendant made an Offer to Settle whereby he/she would pay the Plaintiff $5,000.
If the Judgment amount is in A ($0 to $5K), then the Defendant could say “thank you very much Your Honour, we had actually offered $5,000 to settle this matter and save everyone the cost of Trial but the Plaintiff refused to accept that, therefore we now claim double costs”
If the Judgment amount is in B($5,001 to $15K), then the Plaintiff would be entitled to “costs”.
If the Judgement amount is in C($15,001 to $20K), then the Plaintiff would be entitled to double costs.
So – what are “costs”? Well in the $20,000 Claim scenario above, and presuming both sides have a paralegal or lawyer representative, “costs” would be:
|Preparation of documents||$100||$100|
|Service of documents||$60||$60|
|Representation fee (15% of Claim)||$3,000||$3,000|
So if that Judgment was:
- $0 (ie. Claim dismissed entirely), then the Plaintiff could owe the Defendant $6,600.
- $4,000 – the Plaintiff would owe the Defendant $2,600
- $10,000 – the Defendant would owe the Plaintiff $13,600
- $20,000 – the Defendant would owe the Plaintiff $27,200