



COURT OF APPEAL FOR ONTARIO

CITATION: Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher
    Dentistry Professional Corporation), 2019 ONCA 550

DATE: 20190628

DOCKET: C65542

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Jasmine Theberge-Lindsay

Plaintiff (Respondent)

and

3395022 Canada Inc. o/a Kutcher Dentistry
    Professional Corporation

Defendant (Appellant)

Chris Dockrill, for the appellant

Ryan Kornblum, for the respondent

Heard:  in writing

On appeal from the judgment of
    Justice Victoria R. Chiappetta of the Superior Court of Justice, dated May 25,
    2018, with reasons reported at 2018 ONSC 3222.

COSTS ENDORSEMENT

[1]

On June 7, 2019, we released our decision in which we allowed the appeal
    and varied the judgment below accordingly.  We invited the parties to make
    written submissions on the costs of the appeal and of the trial.  We have now
    received and reviewed those submissions.

[2]

The appellant seeks its costs of the appeal in the amount of $11,000 on
    the basis that it was successful on its appeal.  The appellant also seeks its
    costs of the trial in the amount of $10,000 on the basis that the respondents
    recovery was modest, sufficiently so that it would have fallen within the
    jurisdiction of the Small Claims Court. The respondent accepts that the
    appellant is entitled to its costs of the appeal but submits that those costs
    should be fixed at $10,000. The respondent says that the costs award of $15,000
    at trial in her favour should remain for a net amount due to the respondent of
    $5,000.

[3]

We would fix the costs of the appeal at $10,000 in favour of the
    appellant. We would make no order as to the costs of the trial. While
    admittedly the respondent was successful at trial, her success, as found by
    this court, was very limited.  She also recovered an amount that would have been
    within the jurisdiction of the Small Claims Court. On that latter point, we
    note that r. 57.05(1) of the
Rules of Civil Procedure,
R.R.O. 1990,
    Reg. 194 expressly provides that where a plaintiff recovers an amount within
    the monetary jurisdiction of the Small Claims Court, the court may order that
    the plaintiff shall not recover any costs.

[4]

In the end result, we order that the appellant shall recover its costs
    of the appeal fixed at $10,000, inclusive of disbursements and HST, and that
    there be no award of costs of the trial.

P.
    Lauwers J.A.
G. Pardu J.A.
I.V.B. Nordheimer J.A.


