Court File and Parties

COURT FILE NO.: CV-12-461299

DATE: 20131004

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gaspare Di Salvo, Plaintiff

AND:

Maria Bongelli and Giulio Bongelli and Romina Di Salvo, Defendants

AND BETWEEN:

Maria Bongelli and Giulio Bongelli, Plaintiffs by Counterclaim

AND:

Gaspare Di Salvo, Dimple Verma and Verma Injury Lawyers Professional Corporation, Defendants by Counterclaim

BEFORE: Lederman J.

COUNSEL:
Ranjan Das, for the Plaintiff and Defendants by Counterclaim, Moving Parties

Emilio Bisceglia, for the Defendants, Plaintiffs by Counterclaim, Maria Bongelli and Giulio Bongelli, Respondents

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] The Moving Parties seek their costs of the two motions which they brought attacking the Amended Statement of Defence and Counterclaim.

[2] There was division of success on the Plaintiff’s motion to strike out portions of the Statement of Defence. The Respondents were successful in maintaining some paragraphs (namely, the recitation of specific incidents in the past relationship between the parties; and the denial of the Plaintiff’s allegation of loss of income and loss of competitive advantage by asserting that the Plaintiff is gainfully employed as a lawyer and working for Verma), and the Plaintiff was successful in having other paragraphs of the Statement of Defence struck out.

[3] With respect to the Statement of Defence, the motion was straightforward, not complicated. As success was divided, there will be no costs of this motion.

[4] Further, the Moving Parties were completely successful in having the entire Counterclaim struck out, although leave was given to amend. The most important issue related to the Counterclaim brought against the VIL parties in respect of their professional capacity as lawyers. There was no basis to assert such a claim. Indeed, Respondents’ counsel was given early warning by Low J. in Motions Scheduling Court that such a claim appears to have been brought for strategic reasons and it should be reconsidered. This admonition was ignored and the Respondents persisted in maintaining their position with respect to this allegation.

[5] Months after these motions were launched and significant preparation undertaken by the Moving Parties, the Respondents amended without notice their pleading on the eve of the hearing of the motions. The offending portions of the Counterclaim, however, remained. The Respondents had served late an Offer to Settle but did not amend their pleading in conformance with that offer.

[6] As the VIL parties were successful in having the Counterclaim struck out they are entitled to their costs for that motion. In fixing the costs, certain factors set out in Rule 57.01(1) should be taken into account in the circumstances of this case:

(a) the fact that the Moving Parties were exposed to a damages claim of $4,000,000 in the Counterclaim which was struck out;

(b) the conduct of the Respondents in ignoring the caution of Low J.; and amending their pleading on the eve of the motions but leaving in the offending paragraphs of the Counterclaim;

(c) the fact that the Counterclaim had significant implications for the professional reputation of the VIL parties; and

(d) the principle of proportionality and the range of costs generally awarded on such pleadings motions.

[7] In the circumstances, the VIL parties will have their costs fixed at $5,000 all inclusive, payable by the Respondents within 30 days.

Lederman J.

Date: October 4, 2013