Court File and Parties

CITATION: Royal Bank of Canada v. Nicolau, 2015 ONSC 3950

COURT FILE NO.: CV-12-453375

DATE: 20150617

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Royal Bank of Canada, Plaintiff

AND:

Harry Nicolau and Gabriel Paul Nicolau, Defendants

BEFORE: Pollak J.

COUNSEL: Gregory W. Bowden, for the Plaintiff

Harry Nicolau and Gabriel Paul Nicolau, self-represented Defendants

HEARD: March 2, 3, 4, 5, 2015

COSTS ENDORSEMENT

[1] I have considered the costs submissions of both parties. At trial, the parties were asked by the Court, “Can you agree on costs to be awarded on a partial indemnity basis, awarded to the victorious party at this trial?” The parties were told by the Court that the appropriate scale of costs could be addressed after the decision, as the Court could not review or consider any offers to settle before it makes a decision. The parties did agree on costs of $23,000 on a partial indemnity basis to be paid to the successful party. That agreement governs the cost award of the Court, subject to the parties’ rights to make submissions on the appropriate scale of costs to be awarded. The Court would at such time consider the effect of any offers to settle.

[2] The successful Plaintiff has submitted that:

“Your Honour requested submissions on costs if the parties could not re-affirm the agreement reached at the end of trial in your honour’s presence. There has been no re-affirmation of the agreement, and if your honour decides not to order costs as per the agreement of the parties at trial, then the following are my submissions on costs.”

[3] There is no necessity for a “re-affirmation of the agreement” reached by the parties on the appropriate amount of costs on a partial indemnity basis. The Plaintiff has, however, submitted that “if your honour decides not to order costs as per the agreement of the parties at trial, then the following are my submissions on costs”. The Plaintiff has therefore submitted that the agreement reached by the parties is the appropriate cost award for this Court to make in the circumstances of this case.

[4] I have considered the factors set out in the Rules of Civil Procedure, RRO 1990, Reg 194 and in the Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) case. I am required to award costs that are fair and reasonable. Upon consideration of all of these factors, I award costs on a partial indemnity scale in the amount of $23,000, to be paid by the Defendant to the Plaintiff on a partial indemnity basis in accordance with the agreement reached by the parties at trial.

Pollak J.

Date: June 17, 2015