CIBC Mortgages Inc. v. Vieira et al., 2014 ONSC 56

SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CV-09-3351-00
Date: 2014-01-22

RE: CIBC Mortgages Inc. v. Vieira et al.

Before: Coroza, J

Counsel:
R. Aisenberg, for the Plaintiff
K. Apel, for the Defendant

Heard: In writing

ENDORSEMENT

1This endorsement relates to costs to be awarded pursuant to my judgment that granted CIBC summary judgment and dismissed Vieira's counterclaim. That endorsement was released on November 1, 2013, and I requested written submissions as to costs from CIBC and Vieira.

2I have received submissions from CIBC and Vieira. CIBC’s submissions were filed on November 7, 2013, which was within the deadline of ten days from the date of the judgment. Vieira was granted an extension and filed very brief submissions which I received on January 21, 2014.

3The awarding of costs is entirely discretionary. However, there is a presumption that a successful litigant is entitled to his or her costs, in all but a few circumstances.

4Rule 57.01(1) of the Rules of Civil Procedure provides assistance in regards to the exercise of my discretion. My objective in awarding costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant¹.

5I have reviewed CIBC's costs submissions. Counsel for CIBC asks for substantially indemnity costs based on its contractual term under the mortgage and Vieira's unproven allegations of fraud². There is strong authority that suggests that parties who make allegations of fraud or other improper conduct seriously prejudicial to the character or reputation of a party that are determined to be unfounded are often held liable to pay costs on a substantially indemnity scale³.

6I have decided that CIBC shall have their costs of the motion on a substantial indemnity scale. As I stated in my judgment on the motion, the theory advanced by Vieira that CIBC was hiding a smoking gun was not supported by any evidence put forward by Vieira. The bald assertions and conclusory statements set out in her pleadings failed to establish any link or connection to fraud committed by any employee of CIBC. I am mindful that the awarding of costs on a substantial indemnity scale is to be exercised in special or rare cases, but the defence in this case raised unproven allegations of fraud and the defendant falls into the category of those litigants who are often held liable to pay costs on a substantially indemnity scale.

7CIBC submits it is entitled to receive the following costs:

(1) costs ordered by Mossip J. in the amount of $900 on December 11, 2012. Mossip J. held that the time to pay these costs should be determined by the judge hearing the summary judgment motion;

(2) costs "in the cause" ordered by Skarica J. on May 8, 2013, for the refusal and undertakings motion. CIBC has submitted a Bill of Costs in the amount of $7,550.66 for that particular motion; and

(3) costs for the summary judgment motion, action and counterclaim in the amount of $31,300 inclusive of disbursements.

8There is no question that CIBC has achieved complete success on this motion and is entitled to its costs of the proceedings in this court. I have considered the Bills of Costs for this motion and the action submitted by CIBC.

9I make no specific finding with respect to the rates charged by counsel or the law clerks for CIBC.

10CIBC's Bill of Costs essentially claims for 32.8 hours of work by Mr. Aisenberg, a 1985 call, at a full indemnity rate of $450 to $500 per hour. Minor amounts of work totalling ten hours were done by others bringing the total amount of time spent to be about 43 hours. There are $1,776.64 in disbursements.

11While I am satisfied that Mr. Aisenberg and his staff thoroughly prepared CIBC's materials on this motion and the action, 43 hours of work is somewhat excessive and should be reduced. I do not say this to be critical, in any way, of Mr. Aisenberg. However, he is a very experienced lawyer and he was proceeding in a matter and area of law that was very familiar to him. There was nothing complex about this action and nothing complex about this summary judgment motion.

12In all these circumstances, Vieira shall pay the following costs:

(1) $900 in costs fixed by Mossip J. on December 11, 2012;

(2) $7,550.66 in costs ordered "in the cause" by Skarica J. on May 8, 2013; and

(3) $10,000 in costs for the motion and the action inclusive of HST and disbursements.

13The total sum of costs is $18,450.66 inclusive of HST and disbursements. These costs should be paid within 30 days.

14In my view, the costs award for the action and the motion reflect what is fair and reasonable rather than the exact measure of the actual costs incurred by CIBC. I have also considered Vieira’s very brief submissions as to costs which assert that $10,000 in costs is reasonable taking into account that Vieira is a single mother who lives in subsidized housing with nominal income.

15My judgment of November 1, 2012, did not include a specific amount awarded to CIBC. Mr. Aisenberg has provided a draft judgment which I have reviewed and signed. Judgment is in the amount of $140,745.55⁴ and I have included the amount of costs awarded pursuant to this endorsement in the judgment.

16I thank counsel for their assistance.

Coroza, J

DATE: January 22, 2014

Court File No.: CV-09-3351-00
Date: 2014-01-22

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: CIBC Mortgages Inc. v. Vieira et al.

Footnotes

1. 1See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at paragraph 26.
2. 2See Ascent Incorporated v. Fox 40 International Inc., 2009 45322 (Ont.S.C.J.).
3. 3See Ascent Incorporated, supra, at para 3.
4. 4Representing the amount owing as of November 1, 2013