SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-380880
DATE: 20121211

RE: KAROLY PETER CSAK, and ELZBIETA CSASK,

also known as ELIZABETH CSAK

Plaintiffs

AND:

MARIA CSAK, also known as KRYSTYNA CSASK,

also known as CHRISTINA CSAK, in her capacity as

THE TRUSTEE OF THE ESTATE OF CHARLES CSAK, DECEASED,

and personally, and THE TORONTO-DOMINION BANK

Defendants

BEFORE: Mr. Justice Lederer

COUNSEL:
Marek Z. Tufman , for the Plaintiffs

Robert P. Marcantonio , for the Defendant/Moving Party, Toronto-Dominion Bank

Mark Adilman , for the Defendant, Maria Csak

COSTS ENDORSEMENT

[ 1 ] This was a motion for summary judgment. In the action, it was alleged that the Toronto- Dominion Bank was required to, and failed to, preserve funds which the plaintiff said were held in trust for the benefit of the plaintiff, Karoly Peter Csak, and that the bank was negligent in the discharge of its obligations to the plaintiffs.

[ 2 ] The motion was brought on behalf of the bank on the basis that there was no trust and that no issue of negligence could arise.

[ 3 ] On the motion, it was determined that there could be no trust, but a question remained as to whether the bank was obliged to or should have delivered the funds to the credit of Karoly Peter Csak at a time prior to its receipt of a Requirements to Pay issued by the Canada Revenue Agency. It was determined that it was not possible to fully appreciate the evidence such that this question could be answered without a trial.

[ 4 ] The motion was dismissed.

[ 5 ] The plaintiffs and the defendant, Maria Csak, seek their costs.

[ 6 ] Both rely on settlement offers made pursuant to Rule 49 of the Rules of Civil Procedure. The offer of the plaintiffs was that the motion be dismissed without costs to the date of the offer. The offer expired five minutes after the commencement of the hearing of the motion. The offer of Maria Csak was that the motion be dismissed, with the bank paying her costs from the date of the offer on a partial indemnity scale. This offer expired two minutes after the motion commenced.

[ 7 ] These offers are relied on by both parties in their claim for costs and substantial indemnity scale. Ultimately, Rule 49 is designed with the idea that it will promote settlement. Settlement occurs in there is compromise. These offers are directed not to compromise, but to the bank giving up the motions. In this case, legal positions taken by the bank were sustained on the motion. I will not, based on the settlement offers made, accede to the request the costs be awarded on a substantial indemnity scale. On the other hand, it is obvious that the bank is in a superior economic position to the plaintiffs and to Maria Csak. At its highest, this action concerns $50,000. Given that it was not successful, it must be taken that there was little purpose in bringing the motion. All of the issues could have been dealt with at the trial without the need of the extra cost entailed in a motion such as this. To me, this presents an appropriate justification for an order costs on a substantial indemnity scale.

[ 8 ] The plaintiffs seek costs in the amount of $22,977.73.

[ 9 ] Maria Csak seeks costs in the amount of $25,302.54.

[ 10 ] Proportionality has to play a role in an award of costs even where it is a bank on the other side. It is not reasonable that both parties seek costs that might have been appropriate for one.

[ 11 ] In the circumstances, I award costs to the plaintiff in the amount of $15,000.

[ 12 ] I award costs to the defendant, Maria Csak, also in the amount of $15,000.

LEDERER J.

Date: 201212