CITATION: The Piazza Family Trust v. Veillette, 2011 ONSC 3561
COURT FILE NOS: 10-DV-1681 and 10-49304
DATE: 2011/06/15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF AN APPEAL UNDER s. 45(1) of the Arbitration Act 1991, c. 17 as amended, and an APPLICATION FOR REVIEW UNDER s. 46(1) Arbitration Act 1991, and Section 2 of the Judicial Review Procedure Act, 1990, c.J-1 as amended
BETWEEN:
THE PIAZZA FAMILY TRUST and JOHN PIAZZA
Applicants/Appellants
NORTH AMERICAN REALTY INC. and GIUSEPPE REITANO
Applicants
– and –
ROBERT VEILLETTE and ANTHONY DISIPIO HOLDINGS INC. and MICHELE ZAGARIA IN TRUST and SAVINO ZAGARIA IN TRUST and GIANFRAN HOLDINGS INC.
Respondents/Claimants
Kenneth Radnoff Q.C./David Dwoskin, for the Applicants/Appellants The Piazza Family Trust and John Piazza
Eric R. Williams for the Applicants North American Realty Inc. and Giuseppe Reitano
Keith A. MacLaren/Owen D. Bourns, for the Respondents/Claimants
HEARD: By Written Submissions
DECISION REGARDING COSTS
R. Smith J.
Positions of Parties
[1] The respondents seek costs on a partial indemnity rate of $22,651.00 plus disbursements of $1,853.19 plus HST. The respondent Piazza and the Piazza Family Trust submit that the costs claimed are disproportionate to the success achieved by the respondents. Piazza further submits that the appellants should not be jointly and severally liable for the costs. Piazza submits that a costs award in the amount in the range of $10,000.00 to 15,000.00 excluding amounts awarded against North American Realty Inc. and Giuseppe Reitano would be reasonable.
[2] Reitano and North American Realty Inc. have not made any submissions on costs.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter, unreasonable conduct of any party which unduly lengthened the proceeding, scale of costs and any offer to settle, the principle of indemnity, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession, the time spent and the principle of proportionality, and the amount that a losing party would reasonably expect to pay.
Success
[4] In this case, the respondents were completely successful both on the appeal and on the application to set aside the decision and on the application for judicial review brought by Piazza.
Complexity and Importance
[5] The issues were above average complexity as they involved both an appeal of an arbitrator’s ruling, an application for judicial review which was not complicated, and an application to set aside an arbitrator’s decision which involved a lengthy decision with complicated factual findings.
Scale of Costs and Offers to Settle
[6] There were no offers to settle other than several made by Piazza, however Piazza was not successful on his appeal or judicial review with the application to set aside the arbitrator’s decision. Costs will therefore be fixed on a partial indemnity basis.
Hourly Rates, Time spent, Proportionality and Indemnity
[7] Piazza does not take issue with the hourly rates sought or specifically with the number of hours spent in preparation. The matter involved two attendances before the Court where an appeal to the Divisional Court and the application to set aside the arbitrator’s decision in the Superior Court were combined. In addition, the proceeding involved an application for judicial review by Piazza as well as an appeal by Piazza and an application to set aside the arbitrator’s decision under s. 46 of the Arbitration Act brought by both parties.
[8] The amount of the damages awarded by the arbitrator was substantial as with costs it amounted to over $600,000.00. Given the amounts involved and the complexity of the issues raised, it was reasonable for the respondents to spend a substantial amount of time in preparing and responding to the three separate proceedings within the hearing.
Amount the Unsuccessful Party Would Reasonably Expect to Pay
[9] Piazza relies on the decision of Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) and submits that the amount sought is unreasonable for the losing party to pay. However Piazza also submitted that his share should be in the $10,000.00 to $15,000.00 range. He further submits that a significant amount of time was related to the adjournment of the application on January 13, 2011 which was related to matters raised by the applicants North American Realty Inc. and Giuseppe Reitano. If the costs of $10,000.00 to $15,000.00 were doubled to account for the fact that two parties were involved, then the amount would be in the $20,000.00 to $30,000.00 range as claimed by the respondents. The amount claimed by the respondents does not seem to be outside of the range of what a losing party would reasonably expect to pay.
[10] In addition, given the lack of submissions on costs from Reitano and the North American Realty Inc., I can only infer that they do not disagree with the amount claimed.
Joint and Several Liability
[11] Piazza objects to the award of costs being made on a joint and several basis. The arbitrator found all appellants including Piazza and Reitano to be jointly and severally liable for both the amount claimed and the costs that he awarded. In the proceedings before me both appellants supported the positions of the other with regards to the appeal and the motion to set aside the arbitrator’s decision. The arbitrator found that both Piazza and Reitano committed the tort of deceit and shared kickbacks from construction on the Cooper Street property. Given the arbitrator’s findings, a costs award will also be payable jointly and severally.
Disposition
[12] Having considered all of the above factors the Piazza Family Trust, North American Realty Inc., Giuseppe Reitano and John Piazza are ordered to pay costs to the respondents fixed in the amount of $20,000.00, plus disbursements fixed at $1,000 plus HST on a joint and several basis.
R. Smith J.
Released: June 15, 2011
CITATION: The Piazza Family Trust v. Veillette, 2011 ONSC 3561
COURT FILE NOS: 10-DV-1681 and 10-49304
DATE: 2011/06/15
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF AN APPEAL UNDER s. 45(1) of the Arbitration Act 1991, c. 17 as amended, and an APPLICATION FOR REVIEW UNDER s. 46(1) Arbitration Act 1991, and Section 2 of the Judicial Review Procedure Act, 1990, c.J-1 as amended
BETWEEN:
THE PIAZZA FAMILY TRUST and JOHN PIAZZA
Applicants/Appellants
NORTH AMERICAN REALTY INC. and GIUSEPPE REITANO
Applicants
– and –
ROBERT VEILLETTE and ANTHONY DISIPIO HOLDINGS INC. and MICHELE ZAGARIA IN TRUST and SAVINO ZAGARIA IN TRUST and GIANFRAN HOLDINGS INC.
Respondents/Claimants
REASONS FOR COSTS
R. Smith J.
Released: June 15, 2011