The court recently released a cost endorsement in the neighbour nuisance case that I reported on in Use of Outdoor Wood Furnace Caused $40,000.00 in Nuisance Damage to Neighbouring Couple.
The interesting issue in the cost endorsement was how to address a claim for costs that exceeded the damage award. In this case, the plaintiff was seeking a recovery in the range between roughly $115,000.00 and $161,000.00 (in all-inclusive).
As is evident, these amounts far exceed the $40,000.00 awarded in damages.
The responding defendants would naturally argue that the costs should be significantly lower based on the fact that the claimed costs were wholly disproportionate to the amount of the recovery, and given that the recovery was within the monetary limit of the Simplified Procedure, and just modestly above the Small Claims Court jurisdiction.
However, the court pointed out that the fact that the costs incurred greatly exceeded the damages recovered by the plaintiffs is not, in and of itself, a reason to decline to award the plaintiffs their reasonable costs.
The court was not critical of the Plaintiff commencing the claim outside the Small Claims Court or outside the Simplified Procedure, because the main requirement for the Plaintiff was an injunction to prevent the defendant from continuing to use the outdoor wood burning fireplace, and this type of relief was not available in those two other forums.
The judge also took into account offers to settle that the plaintiff made, which would have put the defendant in a better position had they accepted it. This was a compelling reason to award the plaintiffs a significant cost recovery: in this case, assessed by the judge at $90,000 all-inclusive.
Rintoul v. Drummond, 2022 ONSC 2379
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc2379/2022onsc2379.html