ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Brienza v. Brienza, 2015 ONSC 339
COURT FILE NO.: CV-13-487635
COURT FILE NO.: CV-14-507048
DATE: 20150116
BETWEEN:
GIANLUCA BRIENZA
Plaintiff
– and –
MICHELLE BRIENZA a.k.a. MICHELINA BRIENZA and RYAN AKHTARI
Defendants
AND BETWEEN:
GINO BRIENZA AND NATALINA BRIENZA
Applicants
– and –
GIANLUCA BRIENZA AND
MICHELLE BRIENZA a.k.a. MICHELINA BRIENZA
Respondents
Raffaele Sparano for the Plaintiff
H. Richard Bennett for the Defendant Michelle Brienza
Enio Zeppieri for the Applicants Gino Brienza and Natalina Brienza
Respondents
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] Relying on the Partition Act, R.S.O. 1990, P. 4, the Plaintiff Gianluca Brienza, brought a motion for a partial summary judgment against his sister, the Defendant Michelle Brienza.
[2] In a separate proceeding by application, the Applicants Gino and Natalina Brienza, (Gianluca and Michelles’ parents) sought an order authorizing the sale of 16 Muskoka Ave., Toronto, which was one of the three properties that was the subject matter of the partition motion. Gianluca supported his parents’ Application. The Application was opposed by Michelle.
[3] I granted both the motion and the Application. See Brienza v. Brienza, 2014 ONSC 6942.
[4] I ordered that if the parties could not agree about the arrangements for a sale of the three properties, the sale procedure shall be referred to a Master of this court. Apparently, they have not agreed, and, thus, the matter shall be referred to the Master.
[5] As the successful party on the partial summary judgment motion, Gianluca seeks costs from Michelle in the amount of $12,355.16, which is comprised, in part, of $6,352.25 in fees and disbursements of $5,998.91. Michelle, however, submits that there should be no order as to costs.
[6] Although, not for the reasons suggested by Michelle, I agree that there should be no order as to costs for the partition motion. Gianluca and Michelle should bear their own costs for that motion.
[7] As the successful parties on the Application, Gino and Natalina Brienza seek full indemnity costs of $36,634.81 payable from Michelle, who was the party that resisted their Application. Michelle submits that they should receive no costs or in the alternative that they should receive costs of $5,000 payable from the proceeds of sale from 16 Muskoka Ave.
[8] I disagree with Michelle’s submissions.
[9] Michelle, who was the unsuccessful party on Gianluca’s motion, submits that each party should bear their own costs because; she sought to have the matter mediated, which was resisted by him; awarding costs would only aggravate matters and the ill-will between the siblings; and Gianluca was not totally successful on the motion and was guilty of bad conduct.
[10] I do not rely on these reasons for not awarding costs in the partition motion. All other things being equal, I might have awarded costs in the cause for the partition motion, because it is just a part of the much larger dispute between the parties and the merits of that larger dispute remain to be determined. Michelle was not successful in resisting partition, but she may ultimately prevail in whole or in part.
[11] But all other things are not equal, and rather than ordering costs in the cause, I think the appropriate award is to make no order as to costs. Having regard to their conduct towards their parents, who should not have been embroiled in their children’s dispute, and having regard to the rudeness of the parties, one to the other, neither party deserves to be indemnified for the costs associated with the partition motion. Also, having regard to the issues remaining to be determined, making each party bear the costs of this interlocutory skirmish is fair.
[12] As for Gino and Natalina Brienza, they were, in effect, doing a favour for their children in taking title to the 16 Muskoka Ave. property, and they ought not to have had to sue their own children in order to become disengaged from a dispute in which they played no part.
[13] Michelle opposed her parents’ motion, and she lost. She should pay costs as the unsuccessful party, and in all the circumstances, in my opinion, her parents should receive a full indemnity payable within 45 days and without waiting for the sale of the 16 Muskoka Ave. property.
[14] Orders accordingly.
Perell, J.
Released: January 16, 2015
CITATION: Brienza v. Brienza, 2015 ONSC 339
COURT FILE NO.: CV-13-487635
COURT FILE NO.: CV-14-507048
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIANLUCA BRIENZA
Plaintiff
– and –
MICHELLE BRIENZA a.k.a. MICHELINA BRIENZA and RYAN AKHTARI
Defendants
AND BETWEEN:
GINO BRIENZA AND NATALINA BRIENZA
Applicants
– and –
GIANLUCA BRIENZA AND
MICHELLE BRIENZA a.k.a. MICHELINA BRIENZA
Respondents
REASONS FOR DECISION – COSTS
PERELL J.
Released: January 16, 2015