Court File and Parties

COURT FILE NO.: CV-09-1026-00 DATE: 2018 10 12

RE: SAM COSENTINO, on his own behalf and on behalf of all creditors of DIMINACO DEVELOPMENTS INC. Anna Cosentino, Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, CAESAR COSENTINO, ANTHONY COSENTINO, MARIO COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC. and PIT-ON CONSTRUCTION CO. LIMITED, Plaintiffs

AND:

DOMINACO DEVELOPMENTS INC., Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, ANNA COSENTINO, CAESAR COSENTINO, MARY ALILOVIC, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC., PIT-ON CONSTRUCTION CO. LIMITED and JAMES ARTHUR MACCOLL, Defendants

BEFORE: LEMAY J

COUNSEL: S. Cosentino, Counsel for the Moving Party/Plaintiff E. Evangelista, Counsel for the Defendants, Dominaco Developments Inc., Mary Alilovic, one of the Estate Trustees of the Estate of Domenic Cosentino, Decased, Mary Alilovic, Anthony Cosentino, Mario Cosentino, 1183082 Ontario Inc., 1331722 Ontario Inc., and Pit-On Construction Co. Limited. A. Antoniou, Counsel for the Defendant, James Arthur MacColl E. Griffith, Statutory Guardian of Property, Anna Cosentino J. Morton, for the non-parties

Endorsement

[1] I dismissed a motion to amend the Statement of Claim in this matter on August 27th, 2018 (see 2018 ONSC 5056). It is now time to fix the costs in this matter.

The Positions of the Parties

[2] The Handler Defendants seek substantial indemnity costs in the sum of $13,034.40 or, in the alternative, partial indemnity costs in the sum of $11,384.60. Both amounts are inclusive of HST and disbursements. Substantial indemnity costs are sought on the basis that Mr. Cosentino intentionally and needlessly complicated the conduct of this proceeding.

[3] The Defendant MacColl seeks costs on a substantial indemnity basis in the sum of $1,322.10 or, in the alternative on a partial indemnity basis in the sum of $969.54. Again, both numbers are inclusive of HST and disbursements.

[4] The non-party, Ms. Broderick, seeks costs on the same basis as the Defendant MacColl. She makes her submissions personally, as her counsel is currently unable to act in this matter.

[5] The Plaintiff, Mr. Cosentino, argues that costs should not be awarded to Ms. Broderick as she was never a Defendant to this action. In addition, he argues that the motion was straightforward, and that it was of low complexity. Finally, he argues that the principle of proportionality should apply and that an award of no more than $5,000.00 all in for costs should be made.

Analysis and Reasons

[6] I start by noting that costs follow the event and, in this case, the Defendants are entitled to their costs.

[7] The first issue is whether the Court should award partial or substantial indemnity costs to the Defendants. In support of their position that substantial indemnity costs are appropriate, the Handler Defendants direct me to the following conduct that they argue justifies an award of substantial indemnity costs:

a. demanding an early hearing date so as to avoid prejudice with respect to a limitation period, and subsequently entirely failing to produce any evidence or argument at the motion that a limitation period was about to expire;

b. commencing a New Action and serving an amended Notice of Motion seeking to amend the claim, add defendants and consolidate the two actions;

c. serving a Notice of Examination on a legal secretary’s affidavit, which served only to introduce correspondence into evidence;

d. despite the demands detailed in subparagraph, a., thereafter insisting the motion be adjourned to a non-urgent date after the above-described examination;

e. serving counsel with a second supplementary motion record at the initial return date of the motion before RSJ Daley;

f. attending the initial return date of the motion with no intention of arguing the motion, and without informing counsel of this intention. Although the costs of the initial date were addressed by RSJ Daley in an endorsement of August 27, 2018, the Handler Defendants submit such conduct may be considered on this motion, and is indicative of the manner in which the Plaintiff conducted this proceeding as a whole;

g. further amending his Notice of Motion to abandon the relief seeking to consolidate this action with the New Action.

[8] While I am concerned about elements of Mr. Cosentino’s conduct, I am not convinced that these issues justify an award of substantial indemnity costs in this case. The standard for an award of substantial indemnity costs is very high. It generally requires conduct that amounts to an abuse of process (see McBride Metal Fabricating Corp v. H & W Sales Co. (2002), 59 O.R. (3d) 97 at paragraph 39 and Davies v. Clarington 2009 ONCA 722 at 28-31). In this case, I am not convinced that Mr. Cosentino’s conduct rises to the level of an abuse of process or is otherwise so egregious as to attract an enhanced level of costs. The elements of Mr. Cosentino’s conduct that concern me can be addressed by the application of the factors under Rule 57.01 of the Rules of Civil Procedure.

[9] I turn to those factors now. The most relevant of them are:

a) The conduct of any party that tended to lengthen or shorten the proceedings.

b) The complexity of the matter

c) The reasonable expectations of the parties

[10] On the first factor, Mr. Cosentino’s conduct made this motion both longer and more difficult. In particular, his refusal to provide a blacklined pleading made this matter more difficult for both opposing counsel and myself. In addition, his argument that costs should not be fixed by the judge hearing the motion was unreasonable and unnecessary. Finally, Mr. Cosentino pursued different relief at different times in this motion, again making the matter more complex. The concerns of the Handler Defendants, noted at paragraph 7 of this endorsement, are also generally well founded and support an enhanced award of costs in this case. I note, however, that I cannot comment on anything that was said in open Court before Daley R.S.J. as I was not there and do not have the transcripts for those appearances. I can, however, say that the documentary record before me supports the points made by the Handler Defendants.

[11] This brings me to the complexity of the matter. I agree with Mr. Cosentino’s submission that, in normal circumstances, motions to amend pleadings are straightforward. As I have set out above, however, this matter was made significantly more complicated and complex by Mr. Cosentino’s conduct. Again, this factor supports an enhanced award of costs in this case.

[12] Finally, there is the reasonable expectations of the parties. Mr. Cosentino argues that his reasonable expectation is that the opposing parties would have spent no more than ten (10) hours in preparing for this motion. In my view, that is an unrealistic expectation given the complexity of the matter. In my view, the amount of time spent by the Handler Defendants was quite reasonable, and the decision taken by Mr. MacColl’s counsel to adopt the submissions of the Handler Defendants was also quite reasonable. As a result, the partial indemnity costs sought by both of these parties are reasonable.

[13] There are two further arguments to address. First, Mr. Cosentino states that the principle of proportionality should apply here, and that I should recognize that his underlying claim is for only $100,000.00. As a result, Mr. Cosentino says that any award of costs should be limited to 5% of that underlying claim.

[14] I reject that argument in this case. While the principle of proportionality is important, it is not paramount. In this case, in particular, it must give way to the Court’s concerns about the manner in which the motion was conducted. As I have noted, Mr. Cosentino made this matter more complicated than it needed to be. He also refused to follow the directives of the Court in terms of preparing and presenting this motion material. In light of those facts, it cannot then open to Mr. Cosentino to say that the other side should bear the additional costs of this conduct because of the principle of proportionality.

[15] The second argument is whether the non-party Broderick should be entitled to costs. Mr. Cosentino argues that she should not be entitled to costs, as he was not seeking to add her as a party to this action by the time I heard the motion. There is some merit to that argument. However, given the complexity of this case, and the fact that the landscape was changing on a regular basis, it was not unreasonable for Ms. Broderick’s counsel to attend Court on the day that the motion was heard before me. Given the circumstances currently facing Ms. Broderick’s counsel, it is also not unreasonable for there to be no bill of costs before me. As a result, I am of the view that Ms. Broderick should be entitled to costs on the same basis, and in the same amount, as the Defendant MacColl.

[16] In the result, I award the Handler Defendants their costs in the sum of $11,384.60 inclusive of HST and disbursements. I also award both the Defendant MacColl and the non-party Broderick, their costs in the sum of $969.54. Costs are due and payable within thirty (30) days of today’s date.

[17] An Order shall issue in these terms. Approval as to form and content of a draft order is dispensed with.

LEMAY J. Released: October 12, 2018

COURT FILE NO.: CV-09-1026-00 DATE: 2018 10 12 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: SAM COSENTINO, on his own behalf and on behalf of all creditors of DIMINACO DEVELOPMENTS INC. Anna Cosentino, Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, CAESAR COSENTINO, ANTHONY COSENTINO, MARIO COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC. and PIT-ON CONSTRUCTION CO. LIMITED Plaintiffs

• and - DOMINACO DEVELOPMENTS INC., Caesar Cosentino and Mary Alilovic, the Estate Trustees of the ESTATE OF DOMENIC COSENTINO, Deceased, ANNA COSENTINO, CAESAR COSENTINO, MARY ALILOVIC, ANTHONY COSENTINO, MARIA COSENTINO, 1183082 ONTARIO INC., 1331722 ONTARIO INC., 1347482 ONTARIO INC., PIT-ON CONSTRUCTION CO. LIMITED and JAMES ARTHUR MACCOLL Defendants ENDORSEMENT LEMAY J Released: October 12, 2018