COURT FILE NO.: CV12-450479 and CV12-454695

DATE: 20130110

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: VINCENZO PILIECI AND JOHN ALEXANDER PILIECI, Plaintiffs

AND:

BANK OF MONTREAL, TD CANADA TRUST and WORKPLACE SAFETY AND INSURANCE BOARD (WSIB), Defendants

AND RE: VINCENZO PILIECI, Plaintiffs

AND:

TD CANADA TRUST, Defendant

BEFORE: Stinson J.

COUNSEL:
Vincenzo Pilieci, in person

No one appeared for John Alexander Pilieci

Chad Kopach, for the defendant TD Canada Trust

No one appeared for Bank of Montreal and Workplace Safety and Insurance Board

HEARD: January 4, 2013

ENDORSEMENT

[1] These matters came before me on January 4, 2013. The purpose of the hearing that day was to receive submissions from the parties regarding the costs of these proceedings.

[2] The history of these proceedings may be summarized briefly as follows. Mr. Vincenzo Pilieci suffered a workplace injury in the mid-1980s. He filed a claim with the WSIB and ultimately received a lump sum payment in or about April 1991. He is now taking issue with the manner in which his claim with WSIB was resolved.

[3] As part of the steps taken by him to resolve his WSIB claim, Mr. Pilieci has tried to determine whether the cheque that WSIB claims to have paid him was ever properly deposited in his bank account. Mr. Pilieci was, at the relevant time, a customer of TD Canada Trust.

[4] In the summer of 2011, Mr. Pilieci approached TD and asked for copies of his bank records for the year 1991. TD responded that it did not keep records older than seven years, because that was the limit of its record retention requirement. TD was therefore unable to assist Mr. Pilieci.

[5] On April 3, 2012, Mr. Pilieci commenced this action, naming the Bank of Montreal, TD Canada Trust and WSIB as defendants. He claimed significant damages against all defendants, and his son, John Alexander Pilieci sought significant Family Law Act damages. As against the defendant banks, the statement of claim pleaded that they had failed or refused to release information to him.

[6] In response to the statement of claim, TD brought a motion to dismiss the action as disclosing no reasonable cause of action. After he became aware of TD’s motion, Mr. Pilieci amended his statement of claim to delete the monetary claim as against TD. Instead, he simply sought a complete copy of the bank transactions for his account. Despite the amendment to the statement of claim, TD determined to proceed with its motion.

[7] Meanwhile, Mr. Pilieci commenced a second action against TD in Court File CV-12-454695. In it he claimed damages of $50,000 and special damages of $30,000 as well as a complete copy of the bank records for the account in question for the month of April 1991. He cited a variety of grounds upon which he was entitled to the relief sought. TD's response was to bring a motion in that proceeding, as well, returnable on the same date.

[8] Both motions were adjourned from their original return date, July 17, 2012, to a date in September 2012, on consent. They ultimately returned for argument before Pollak J. on September 26, 2012. On that occasion, the parties made several submissions before Pollak J. Based on responses from Her Honour, the parties reached an agreement by which both of the actions would be dismissed as against TD. Pollak J. directed that the issue of costs of the motions be heard on January 4, 2013. She further directed that she was not seized of the costs issue.

[9] Based upon the foregoing, the parties attended before me on January 4, 2013 to make submission as to costs.

[10] Three questions arise for determination:

(a) liability for costs;

(b) scale of costs;

(c) quantum.

Liability for costs

[11] TD seeks costs, arguing that because the motions were dismissed, it was the successful party; as the successful party, the argument continues, TD is entitled to costs. Mr. Pilieci submits that there should be no order as to costs, because TD refused to cooperate with him and it failed to draw to his attention that he could have brought a motion under rule 33.10. Instead, TD effectively forced Mr. Pilieci to commence the actions.

[12] I do not accept Mr. Pilieci's submission. In response to Mr. Pilieci's enquiries in the summer of 2011, TD promptly informed him that it did not have the records he was seeking. Mr. Pilieci was unwilling to accept that response and chose to initiate proceedings against TD. It is not the responsibility of TD to give legal advice as to the correct process for seeking production of records. It was the plaintiffs who chose to initiate proceedings. They subsequently realized that the proceedings they commenced were without merit. I am given to understand that the plaintiffs are now pursuing a remedy under rule 30.10, but that does not excuse or justify the course of conduct they previously pursued.

[13] The plaintiffs chose to sue TD; indeed Vincenzo Pilieci chose to commence two separate proceedings against TD. The initial claim sought substantial damages; although the statement of claim was subsequently amend to delete the damages claim as against TD, Mr. Pilieci commenced the second proceeding in which a not insignificant sum of damages was also sought against TD. It is therefore understandable that TD consulted counsel and took the appropriate steps to oppose the plaintiffs' claims.

[14] TD was successful in obtaining the remedy that it sought, namely, the dismissal of both actions. I see nothing in the conduct of TD that would disentitle it to an award of costs. Accordingly, as the unsuccessful parties, I order the plaintiffs to pay costs to TD.

The scale of costs

[15] TD seeks costs on a substantial indemnity scale. An award of costs on that level, however, is a rare and exceptional remedy. It is reserved to cases where the paying party has been guilty of some form of misconduct, either in the underlying dispute or in the conduct of the proceeding itself.

[16] Although the plaintiffs were unsuccessful, there was nothing in their conduct or in the allegations made by them that would justify the imposition of an order for punitive costs on a substantial indemnity scale. I therefore hold that costs on a partial indemnity scale only are appropriate.

Quantum

[17] In the bill of costs submitted by it in Court File CV-12-450479, TD seeks costs totalling $10,516.21, comprised of $8,844.50 for full indemnity fees, disbursements of $521.92 and tax of $1,149.79. In Court File CV-12-454695, TD seeks costs totalling $3,763.89, comprised of full indemnity costs for fees of $3,040, disbursements of $328.69 and tax of $395.20. In my view, the sums claimed in both actions are excessive and well beyond what the opposite party ought reasonably to have expected to pay.

[18] To begin with, the bills were prepared on a full indemnity basis. The fees should be reduced accordingly to approximately 60% of the amounts claimed.

[19] Secondly, there was considerable overlap between the two matters. Although the plaintiffs' claims were ill-founded, both related to the same issue and thus did not require extensive parallel research and preparation by counsel for TD. Once the second action was commenced, the two proceedings went forth in lockstep.

[20] Neither matter was of great complexity. TD’s position, simply put, was that neither statement of claim disclosed a cause of action as against it. Extensive preparation was not necessary.

[21] The foregoing having been said, TD was forced to take active steps to respond to the proceedings commenced by the plaintiffs. Having initiated legal proceedings, the plaintiffs must have known that they risked being ordered to pay costs if they were not successful. Indeed, in both of the proceedings commenced by them the plaintiffs sought orders as to costs as against the defendants.

[22] In the final analysis, taking into account the foregoing considerations and applying the principle of proportionality, I fix the costs of TD in action CV-12-450479 at the all inclusive sum of $3,500 and in action CV-12-454695 at the all inclusive sum of $1,250. Both sums are inclusive of disbursements and tax. Both sums are inclusive of costs of the action the costs of the motions. The former sum is payable by the plaintiff Vincenzo Pilieci and John Alexander Pilieci jointly, while the latter sum is payable by Vincenzo Pilieci only.

Stinson J.

Date: January 10, 2013