COURT FILE NO.: 624/04

DATE: 20060606

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: JUANITA MONTEIRO, Plaintiff (Appellant) - and - THE TORONTO DOMINION BANK, Defendant (Respondent) - and - JOSEPH MONTEIRO, EVELYN MONTEIRO and FRANK MONTEIRO, Third Parties (Respondents)

BEFORE: Lane, Greer and Epstein JJ.

COUNSEL: Gregory M. Sidlofsky for the Plaintiff (Appellant)

Colin C. Taylor for the Defendant (Respondent)

Debra L. Stephens for the Third Party (Respondents)

WRITTEN SUBMISSIONS ON COSTS

E N D O R S E M E N T

BY THE COURT

[1] On January 9, 2006, we released our Decision in the above Appeal. In paragraph [44] of that Decision, we dismissed the Appeal and said that if the parties could not otherwise agree on Costs, they should make brief written submissions to us, to be filed by the end of January 2006. Since the parties were unable to agree on such Costs, they have provided us with their written submissions.

[2] In the Appeal, the Court determined that the Respondent, The Toronto Dominion Bank (the “TD Bank”) is bound by the decision of the Court in Kuwait, where the Appellant’s mother, Daisy Monteiro (“the deceased”), lived until her death in 1993. While the deceased had assets in Kuwait, she also had some $700,000 in an account with the TD Bank in Toronto. The Appellant, Juanita Monteiro, is the daughter of the deceased, and the sister of the Respondent Joseph Monteiro (now also deceased), and she is the sister-in-law of the Respondent, Evelyn Monteiro, and the sister of Frank Monteiro.

[3] In 1994, the Appellant brought an action in Kuwait against her brothers to confirm the validity of their late mother’s Will. On March 25, 1995, the Kuwait Court of First Instance found the 1989 Will to be valid and enforceable. The Kuwait Court of Appeal, First Circuit Personal Status Court upheld the 1989 Will but referred to it as a “grant contract”, also called a Donation Contract.

[4] The Plaintiff had moved for Summary Judgment against the TD Bank in the Superior Court of Justice. That Motion was dismissed by Mr. Justice Siegel. This Court dismissed the Appeal from that decision but for different reasons.

Costs asked for by TD Bank

[5] It is the position of the TD Bank that it should be awarded its Costs of the Appeal on a partial indemnity basis. It relies on Subrule 20.06(1) of the Rules of Civil Procedure, when a Motion for Summary Judgment has been made and the moving party obtains no relief, the Court:

…shall fix the opposite party’s costs of the motion on a substantial indemnity basis and order the moving party to pay them forthwith unless the court is satisfied that the making of the motion, although unsuccessful, was nevertheless reasonable.

[6] While the Motions Judge found that the original Motion was not unreasonable, TD Bank says that the Court found that there were issues to be tried regarding the bank account in question and that the Kuwait Judgment should have been pleaded and that the Statement of Claim should have been amended. The Divisional Court also found that the Kuwait Judgment requires formal proof in Ontario. TD Bank therefore asks for Costs not only on the Appeal but also on the Motion for Leave. There is a significant amount of money at stake in the issues before the Court and TD Bank says that the matters involved are of significant importance. The TD Bank is also concerned that the Plaintiff had an opportunity when she was before Mr. Justice Siegel to amend her pleadings and chose not to do so.

[7] Counsel for the TD Bank is in-house counsel and under Section 36 of the Solicitors Act, R.S.O. 1990, c.5-15 his Costs should not be disallowed or reduced simply because he is a salaried employee of the TD Bank. He asks that the Bank’s Costs be fixed for the appeal on a partial indemnity rate at $275 per hour for a total of $23,150. The Bill shows about 82 hours billed. This includes one day for the hearing at $2800 (which I added into the hours as 10 hours). He further asks for Costs on the Leave Motion of $3,792.50.

Costs asked for by the Third Parties

[8] The Third Parties rely on the same Rule in asking for their Costs of the Appeal and the Motion for Leave. They too, point to the fact that the Appellant should have amended her pleadings, as suggested by Mr. Justice Siegel. If this had been done, say the Third Parties, they could have had an opportunity to amend their pleadings as well, and it would give them an opportunity to further examine both the Appellant and the Defendant for discovery.

[9] The Third Parties are asking for their Costs on a substantial indemnity basis in the amount of $41,077.84 for both the Leave to Appeal Motion and the Appeal itself. They have broken the Bill into two parts, namely the Motion for Leave in the amount of $11,636.25 inclusive of GST and $28,549.60 inclusive of GST plus disbursements of $891.99, with senior Counsel’s billing rate of $375 per hour and associate Counsel at $275 per hour. Between the two of them, they put in 38 hours on the Leave Motion and 86 hours on the Appeal itself.

The position of the Appellant

[10] The Appellant’s Costs were less than other counsel. On a partial indemnity scale, he says the fees for both should be $27,703.65 and on a substantial indemnity at $36,794.77. He says that they should be fixed at $20,000 in the Cause. This was mainly due to his lesser hourly billing rate, since the hours on the Appeal itself were similar. The Appellant says that all Costs should be payable in the Cause since the amendment to the Claim will be granted as a matter of course on the basis that it has already been argued in the Divisional Court.

[11] The Appellant also says that the documents supporting formal proof of the Kuwait Judgment were made available to counsel at the hearing of the Summary Judgment Motion and again at the hearing of the Appeal.

[12] The Appellant further says that the Kuwait Cassation Court, Civil Status Circuit, has now released its decision on the appeal of the third parties in Kuwait. The Kuwait court reaffirmed its decision in favour of the Appellant before us, Juanita Monteiro.

[13] Lastly, the Appellant points to the fact that the Motions Judge made Costs on the Summary Judgment Motion payable in the Cause, on the grounds that the TD Bank was trying to relitigate matters in Ontario. He found that the Appellant (then Applicant) acted reasonably in bringing the Motion. He further, in his Endorsement on Costs says that, “…I consider that the applicant has a reasonable chance of success at trial on the issue of the ownership of the account.” He greatly reduced the Costs being asked for by the TD Bank and Third Parties from a total of approximately $60,000 to $15,000 in the Cause, with $10,000 to the Bank and $5,000 to the Third Parties.

[14] In reviewing the Bills of Costs on the Appeal and the Motion for Leave, it is the Appellant’s position that these Costs are excessive in the extreme, with no proper explanation as to why the hours were so large on items such as preparation and reviewing the case law. The Appellant says that all these Costs should be made payable in the Cause or in the alternative, that any Costs so awarded should be stayed or ordered paid in any event of the Cause.

Conclusion

[15] We have carefully reviewed all of the submissions in light of the Appeal before us, and have considered the Costs of the Leave to Appeal Motion. We agree with the Motions Judge that the Costs in all of this have been excessive. It is clear that the Kuwait Court has said that the Bank account belongs to the Appellant, Juanita Monteiro, with final formal confirmation to come shortly.

[16] The litigation has gone on far too long in both countries. The Appellant began her action against the TD Bank in Ontario in September 1998. The matter has neither settled nor been fully litigated here, although we agree with Counsel for the Appellant, that the end is possibly near. There will be no middle ground when the final decision is reached.

[17] Given the unique circumstances of this case, we order that the Costs of the parties on the Leave to Appeal Motion and the Appeal itself be in the Cause, and following the position taken by the Motions Judge, those of the TD Bank are fixed at $15,000 and those of the Third Parties at $7,500, with the Costs of the Appellant fixed at $20,000 in the cause. Order to go accordingly.

Lane J.

Greer J.

Epstein J.

DATE: June 5, 2006