SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-11-438696

DATE: 20130208

RE: Alan Beaton, Plaintiff / Responding Party

AND:

Scotia iTrade and Scotia Capital Inc., Defendants / Moving Parties

BEFORE: Justice E. P. Belobaba

COUNSEL: Marc Kestenberg for the Defendants / Moving Parties

Paul Guy and Scott McGrath for the Plaintiff / Responding Party

Jeffrey Larry for the Ombudsman for Banking Services / Proposed Intervener

HEARD: December 11, 2012

COSTS AWARD

[1] In a decision released on December 28, 2012 I granted Scotia Capital’s motion for summary judgment and dismissed the action on the ground that it is statute-barred under the Limitations Act.[^1]

[2] I have now reviewed the parties’ cost submissions. Scotia Capital asks for about $75,000 on a substantial indemnity basis[^2] and Mr. Beaton says that $30,000 on a partial indemnity basis would be more reasonable.

[3] In my view, partial indemnity is the appropriate scale. The plaintiff did not unnecessarily lengthen proceedings – the procedural steps that Scotia complains about were not improper, vexatious or unnecessary. Indeed, they were made pursuant to court orders that were not appealed by Scotia. Also, it was Scotia’s decision to abort the Rule 21 motion and proceed by way of summary judgment. The plaintiff’s unfounded allegation of fraudulent concealment, given the facts herein, does not merit the admonition of the court or the award of costs on a substantial indemnity scale.

[4] Costs will be awarded on a partial indemnity basis. The plaintiff argues that $30,000 all-inclusive for a “half day motion, with only two deponents and less than one full day of examinations” is reasonable. Scotia, if pressed to accept partial indemnity, asks for about $50,000 for both the motion and the now-dismissed action.

[5] My primary obligation as a judge in fixing costs is to consider the factors set out in rule 57.01(1) and fix an amount that is fair and reasonable to the unsuccessful party in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council of Ontario, (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 at para. 26. In my view, a costs award of $35,000 all-inclusive is fair and reasonable.

[6] Costs are therefore fixed at $35,000 all-inclusive, payable by Mr. Beaton to Scotia Capital within 30 days.

Belobaba J.

Date: February 08, 2013

[^1]: S.O. 2002, c. 24, Sched. B.

[^2]: Given Justice Low’s ruling on the June 29, 2012 attendance (“no costs”), Scotia Capital’s initial request for $80,362 has been reduced on consent by $4590 (plus HST).