ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-27870SR

DATE: 2013-03-19

BETWEEN:

ROBERT ATANGANA, THE CHOCONUTS OF AMERICA CORPORATION and ANNETTE B. AVINA

Plaintiffs

– and –

ROYAL BANK OF CANADA

Defendant

Graydon Sheppard, Counsel to the/pour les Plaintiffs/Plaignants

HEARD: September 16, 2010

HEARD: September 16, 2010

Nicole Dunbar, Counsel for the Defendant/pour le Defendeur

RELEASED: March 19, 2013

COSTS ENDORSEMENT

WHITTEN, J.

[1] By endorsement dated January 16, 2013, this court struck the Statement of Claim herein, essentially as a result of the application of The Limitations Act S.O. 2002. The usual invitation was made for possible agreement as to the quantum and level of costs or the filing of submissions thereto. The latter have now been received and reviewed.

[2] Sections 131(1) of the Courts of Justice Act, R.S.O. 1990 C.43 provides that “costs are in the discretion of the court.” As with any discretion it is to be exercised in a fair and principled fashion. Proportionality with an eye to the complexity of the litigation and the amount involved, is a predominant theme (Rule 1.04 (1.1).

[3] Rule 57.01 sets out applicable principles. Complexity of the issues, the amounts involved, the behaviour of the parties relative to the necessary processing or defence of a claim, reflect the theme above.

[4] Although RBC appropriately refers to the amount of the original claim: namely, 6 million dollars, one realizes that many claims are commenced with a degree of bravado, almost to the point of being “boiler plate”, possibly with the hope that the defendant/defendeur will be intimidated by the amount. Wildly optimistic amounts are the functional equivalent of the “battle cry” before the charge.

[5] The original statement of claim was issued in French by the plaintiffs/plaignants representing themselves. Amazingly, whatever the obvious shortcomings of the Statement of Claim drafted by the lay person, the defendant Bank responded with a Statement of Defence. Fortunately for all, skilled counsel was subsequently employed who would reduce the actions for settlement and a single contentious issue. This achievement was not instantaneous. It was necessary that Justice Taliano order August 3, 2012, certain procedural steps. His Honour also ordered $3,000 costs as against the plaintiffs. Regrettably those costs are still outstanding.

[6] On January 16, 2013 the outstanding matters were settled: namely, the motion to stay/consolidate the action herein with that relating to the mortgage enforcement, and the mortgage enforcement action itself. The road to settlement was not without recalcitrance on the part of the plaintiffs. Yet, there was still nevertheless a settlement save and except for the motion to dismiss by the Bank which was successful.

[7] The Bank appropriately refers to this behaviour on the part of the plaintiffs and also the terms of the mortgage which provide for full indemnification of the institution’s costs. Counsel for the plaintiffs emphasizes that a cost award has already been made for the procedural behaviour of the plaintiffs and that what remained after settlement was a relatively simple factual and legal issue. In other words, at the end of the day, considerable economy of effort was achieved.

With an eye to the above points of view and the successful boiling down of multiple actions to a singular issue; this court considers $16,000 inclusive of H.S.T., together with disbursements of $1,084.24 payable to the defendant forthwith appropriate.

WHITTEN, J.

Date: March 19, 2013