I recently attended a Motion to set aside the Default Judgment and terminate the Garnishment we issued against the Defendant’s bank account. Their lawyers were requesting costs of the Motion, payable by not only our client but me personally, and they were asking for close to $5,000.00! Well, that was a first!
Recently, I obtained judgment against several Defendants for a debt owed to our client.
We are unable to effect service personally, so we brought a Motion and obtained an order for subservice. The Defendants were served by mail. Standard stuff.
After the Defendants failed to deliver a Defence, they were noted in default and I attended the Assessment, and our client was awarded judgment.
We garnished the Debtor’s bank account, and it was at that point they involved themselves in the proceedings. Also, standard stuff.
Counsel wanted me to personally pay their client’s costs simply because they felt we should not have obtained an order for subservice and not served their clients by mail (and a few other excuses).
A successful party to a Motion is entitled to costs, and the Rules of the Small Claims Court dictate the amount of those costs. Newsflash: it sure isn’t $5,000.00!
Rule 15.07 of the Small Claims Court allows the successful party costs of $100.00, exclusive of disbursements unless the Court orders otherwise because there are special circumstances. The cost to file a Motion is currently $127.00. So, a successful party would be entitled to $227.00.
Historically, in Motions to set aside a Default Judgment, the Defendant pays the Plaintiff their “throwaway costs,” which are the costs incurred by the Plaintiff to enforce the Judgment prior to being served with the Motion.
In our case, the Court ordered that the Parties pay their own legal fees of the Motion, which was an appropriate decision. The request that an opposing representative personally pay costs is inappropriate and was unjustified.
Costs at a Motion are minimal and aren’t always guaranteed. The Court can exercise its discretion award costs on a Motion, and must be reasonable in the context of Small Claims Court.
Murray Brown, Paralegal