COSTS ENDORSEMENT

CITATION: Remo Valente Real Estate (1990) Ltd. v. Portofino, 2015 ONSC 3164

COURT FILE NO.: 05-CV-5864CM; and

Bank of Montreal v. Portofino Corp., CV-13-19866

DATE: 20150519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Remo Valente Real Estate (1990) Limited, Plaintiff

AND:

Portofino Riverside Tower Inc., Westview Park Gardens (2004) Inc. Portofino Corporation and Dante J. Capaldi, Defendants

AND BETWEEN:

Bank of Montreal, Applicant

AND:

Portofino Corporation, Respondent

BEFORE: Carey J.

COUNSEL: Gino Morga, Q.C., Counsel for the Plaintiff

Anthony J.G. Van Klink, Counsel for BDO Canada Limited, Court-appointed Receiver of Portofino Corporation

HEARD: Written Submissions

COSTS ENDORSEMENT

[1] The plaintiff was successful in defending the Receiver’s (BDO) motion for directions to cancel a Letter of Credit posted in these actions as security. It seeks costs and disbursements of about $85,000 on a substantial indemnity scale, inclusive of HST.

[2] The matter was relatively straightforward and required a day in court. The submissions of BDO include their dockets for over $60,000 which included work on other aspects of the receivership proceeding.

[3] Neither the circumstances here or the conduct of BDO do not satisfy me that substantial indemnity costs are called for. Proportionality is the overriding consideration under Rule 57. While the outcome is important to all parties it does not change the fact that the issue was relatively straightforward and the time required to prepare for and argue the motion should fairly reflect these facts.

[4] While I do not agree that success here was mixed, I do agree with BDO that an all inclusive amount of $20,000 would fairly compensate the plaintiff.

[5] Costs to the plaintiff in both actions in a total amount of $20,000 inclusive of disbursements and HST.

Original signed “Carey J.”

Thomas J. Carey

Justice

Date: May 19, 2015