COURT FILE NO.: CV-09-383062
DATE: 20150729
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1724674 ONTARIO INC., operating as OASI, Plaintiff
- and -
ALBINO SILVA, Defendant
AND:
ALBINO SILVA, Plaintiff by Counterclaim
- and -
1724674 ONTARIO INC., operating as OASI, MARCO PETRUCCI, 2090416 ONTARIO INC. and CAROLINA PETRUCCI, Defendants by Counterclaim
BEFORE: Justice M. D. Faieta
COUNSEL: William A. Chalmers, for the Plaintiff and Defendants by Counterclaim
Joseph M. Sereda, for the Defendant and Plaintiffs by Counterclaim
HEARD: July 16, 2015
COSTS ENDORSEMENT
INTRODUCTION
[1] The claim and counterclaim have been discontinued subject to the issue of costs being determined. The plaintiff and defendants by counterclaim (“the Petruccis”) seek costs of $152,000 in the respect of defending the counterclaim ($76,761.77) as well as their costs for motions that were never heard: their motion for leave to discontinue their claim ($10,779.79), their motion to quash a summons ($2,654.25) and their response to a motion for removal of their firm as counsel for the Petruccis ($62,582.11).
[2] The defendant and plaintiff by counterclaim (“Silva”) was prepared to have the claim and counterclaim dismissed with each party bearing their own costs. This offer was refused by the Petruccis. Given that the Petruccis seek costs, Silva now seeks his costs of defending the claim in the amount of $87,421.66. All of the above figures are on a substantial indemnity basis.
[3] For the reasons described below I have dismissed the various motions for costs other than the costs of this motion. I have awarded $12,920.85 to Silva in respect of this motion.
BACKGROUND
Claim by Oasi
[4] Oasi commenced this action against Silva in July 2009. Oasi makes the following allegations.
[5] In January and February 2008 Marco and the defendant Silva had discussions with respect to Silva, a well-known restaurateur, joining Oasi, a restaurant/lounge business, to run its marketing initiatives and manage all of its food and beverage operations. Oasi would operate on property owned by 2090416 Ontario Inc. (“209”). Marco’s mother, Carolina Petrucci, is the sole officer, director and shareholder of 209. At that time Marco Petrucci was the sole officer, director and shareholder of Oasi. Silva paid $300,000 for 30% voting equity in Oasi. It was agreed that a further 10% voting equity would eventually be issued to Silva’s son as consideration for the services rendered by Silva. Silva agreed to become a director of Oasi in April 2008. He ceased to be a director in April 2009.
[6] 209 leased the property to Oasi on March 1, 2008. Renovations were completed in the summer of 2008. Oasi was not profitable. On September 1, 2008 Oasi and 209 entered into a loan agreement whereby 209 advanced $310,000 to Oasi pursuant to a promissory note that was registered under the Personal Property Security Act, R.S.O. 1990, c. P. 10. By February 1, 2009 Oasi was in arrears to 209 under the lease and note. Oasi was also in arrears to employees, suppliers and tax authorities.
[7] 209 made a formal demand for payment under the note and lease on April 24, 2009. 209 also served a Notice to Enforce Security. As of April 1, 2009 the aggregate arrears of rent was $280,000. Silva refused to invest any further funds in 209.
[8] Oasi alleges that Silva used his position of trust and authority to have Oasi pay the bills, at inflated prices, of companies and suppliers with whom he had relationships and/or ownership in preference to other creditors. Oasi also alleges that Silva diverted significant and repeated business and corporate opportunities away from Oasi and to his own restaurant. Oasi alleges that Silva failed to market and support Oasi and failed to carry out his duties at Oasi. Oasi also alleges that, perhaps sometime in 2009 although it is unclear from the allegations, Silva devoted his time, money and attention to developing another restaurant within walking distance of Oasi. Oasi alleges that Silva breached his fiduciary duties to Oasi as a result of the above conduct. Oasi also alleges that Silva committed the tort of unlawful interference with economic relations as he intentionally and deliberately caused and/or effected the termination of Oasi’s business relationships, prospects and revenue expectations.
[9] Oasi claims damages in the amount of $2,500,000 for breach of fiduciary duties, unlawful interference with economic relations, loss of goodwill and/or loss of reputation.
[10] Oasi also claims aggravated and/or punitive damages in the amount of $500,000 from Silva based on his “extreme misconduct.” Oasi alleges that Silva’s conduct was, amongst other things, harsh, vindictive, reprehensible, arrogant, malicious, callous, highly unethical, oppressive, arbitrary and high-handed and, for good measure, offends the court’s sense of decency.
[11] Oasi also seeks a declaration that Silva is a director of Oasi, and a further declaration that, as a director of Oasi, Silva is personally liable for various financial obligations of an unspecified amount under nine provincial and federal statutes and is personally liable for any and all breaches of 12 provincial and federal statutes, and that Silva should be ordered to pay any and all amounts owing under thirteen provincial and federal statutes.
Defence and Counterclaim by Silva
[12] In August 2009 Silva served a Statement of Defence and Counterclaim. The counterclaim was filed against Oasi, Marco, Carolina and 209 (collectively “the Petruccis”).
[13] The Statement of Defence and Counterclaim alleges that the action by Oasi is part of an ongoing scheme perpetrated by Marco to: 1) force Silva out of the restaurant operations of Oasi; 2) prevent Silvafrom repayment of his loan to Oasi which he alleges exceeds $600,000; 3) force Silva to accept little or nothing as compensation for his interest, time and investment in Oasi.
[14] Silva alleges that Marco and Carolina are extremely wealthy, sophisticated and experienced developers and entrepreneurs. Silva alleges that he was no match for their economic power and expertise. Silva alleges that he was the victim of deceit and false representations perpetrated by Marco which related to the percentage interest in Oasi promised by Marco to Silva. Marco also made promises for significant development on his family’s property, which surrounded Oasi. The property was to include a hotel complex, a condominium development and an upscale fitness club, all of which were to be available or well underway at Oasi’s opening. Marco showed the plans for this development to Silva. As time went on Silva learned that none of the representations were true. Silva would never have provided his services or made the loan to Oasi had he known the truth.
[15] Silva alleges that Marco’s offer was that he and Silva would each own 40% of Oasi leaving the remaining 20% to be divided amongst the chef and other shareholders and investors. Marco told Silva that he valued Oasi at $1 million. He offered Silva an equal interest to his, if Silva would invest $300,000 and assist Marco in the set-up of the food and beverage operation. Silva accepted the offer in reliance on the representations made by Marco without reducing any of the agreement to writing.
[16] Silva alleges that an interior designer, who was also intended to be a 5% shareholder of Oasi, recommended certain changes to the poor interior design of the property. Marco controlled the renovation process and the cheques written to the contractors.
[17] Silva alleges that Marco announced in June 2008 that there were not sufficient funds to complete the renovations and open Oasi. Marco told Silva that unless they each put in additional $300,000 the operation could not go forward. Marco promised that all the other plans for adjacent development would proceed. As a result, Silva invested an additional $300,000 in Oasi.
[18] Silva alleges that he was singlehandedly responsible for the procurement of key talent necessary for the restaurant’s success – namely a renowned executive chef, Ontario’s premier wine sommelier and a successful interior designer.
[19] Silva alleges that Marco kept strict control over Oasi’s spending, accounting, operations, hiring and firing and legal counsel. Silva alleges that Aird & Berlis LLP were asked to prepare a shareholders agreement for Oasi to reflect their handshake agreement. Silva alleges that he thought that Aird & Berlis would be protecting the best interests of Oasi but he subsequently learned that the law firm was the long-time lawyers for the Petrucci family in relation to their other real estate developments, financial interests and businesses. Shares in Oasi were never issued to Silva nor was a shareholder agreement signed.
[20] Silva alleges that Marco acted strictly for the benefit of himself and his family as he caused Oasi to enter into a detrimental lease, loan documentation and security agreements without the knowledge of other stakeholders for the benefit of his mother Carolina and to Silva’s detriment. Silva claims that he suffered financial loss as a result of the unlawful conduct of the Petruccis. Silva alleges that Marco was in control on a day-to-day basis of the accounting and bookkeeping of Oasi. Neither Silva nor any other financial participants had day-to-day or open access to the financial records of Oasi.
[21] Silva alleges that by the end of 2008, it became clear to him that he had been duped by Marco and that none of the representations made by Marco were true. Oasi failed financially due to Marco’s failure to carry through with his promise to build a hotel and entertainment complex and to properly market and promote the property. Marco controlled the legal structure of Oasi. No shares were issued. Shareholders had no access to the bank account and had little or no participation in how the funds were spent.
[22] Silva no longer trusted Marco or his family after 209 threatened to enforce its security against Oasi. Silva asked Marco to return his invested funds. Marco proposed that Silva take a few cents on the dollar for his investment. Silva refused the offer and ceased communications with Marco.
[23] Silva denies that Oasi suffered any damages as a result of his conduct. Silva denies that he ever directed Oasi to prefer one creditor over another nor were any purchases made at an inflated price. He had no control over Oasi’s bank account or authority to sign cheques. He alleges that each and every payment required Marco’s consent. Silva further alleges that he never diverted business away from Oasi as to do so would be ridiculous and contribute to a loss of his investment. He admits to opening a gourmet takeout and meat purveyor that was 1.61 kilometres away from Oasi. It would in no way compete with Oasi. Further, his involvement in this other establishment does not even require weekly attention.
[24] Silva denies that he owed any fiduciary duties to Oasi and further that if he did that he has never breached those duties. Silva alleges that Marco has breached every fiduciary duty that he has accused Silva of breaching.
[25] In his Counterclaim Silva alleges that the commencement of the main action against him is groundless and constitutes an abuse of process of the Court and is an instrument of commercial extortion against him designed to thwart, hinder and make difficult the recovery of his investment, losses and other damages suffered as a result of the Petruccis’ conduct.
[26] Silva counterclaimed for: (1) damages for deceit and misrepresentation in the amount of $1,500,000; (2) damages in the amount of $2,000,000 for the tort of commercial extortion and abuse of process; (3) damages for breach of contract in the amount of $1,500,000.
[27] On October 15, 2014 the following endorsement was issued by Master Dash on a motion to remove Aird & Berlis as counsel:
The parties consent to the defendant’s request to further adjourn this motion given that Mr. Sereda, counsel for the defendant has recently suffered a medical setback and is unable to attend. Similarly the 12 day trial scheduled for December 8, 2014 will need to be adjourned and a trial scheduling date has been set for November 26, 2014. The defendant seeks an adjournment of this motion to January if the Court has dates available. The responding plaintiff/defendant by counterclaim seeks adjournment of the motion to be heard by the trial Judge.
In most circumstances it is appropriate that issues of representation be determined well in advance of the trial date, where it is clearly evident that counsel cannot represent his clients due to conflict, based primarily on members of his firm being necessary witnesses at trial.
In the circumstances of this case, however, I agree with Mr. Chalmers that the matter is best determined by the trial Judge at the opening of trial, notwithstanding that the Motion would have been heard today but for Mr. Sereda’s medical set back. …
Order
Motion to remove Aird & Berlis as lawyers for the plaintiff and defendant by counterclaim is adjourned to be heard by the trial Judge.
Counsel shall re-attend at this Motion on December 2, 2014 (20 minutes) before Master Dash for the purpose of adjourning to the specific date set for trial or, if directed to do so by a Judge, fix a date before a Master to hear the motion in advance of trial or adjourn to a Master to be heard at a long motion and to fix a timetable for delivery of factums.
Costs of the adjournment to be determined by the Judicial Officer hearing this motion.
[28] On November 26, 2014 the following endorsement was issued by Justice Himel:
On consent, trial date of December 8, 2014 is vacated because of illness of defendant’s counsel. Adjourned to May 19, 2015 for 12 days non-jury trial. The issue of the alleged conflict of interest will be determined by the Trial Judge in accordance with Master Dash’s decision of October 15, 2014. While this is highly unusual to place such an issue before the trial judge, the Master has outlined good reasons to do so.
[29] With the trial of this action less than one month away, the Petruccis served a Notice of Discontinuance on April 24, 2015. As a result, leave of the Court under Rule 23.01(1)(b) was required.
[30] On May 4, 2015 a pre-trial conference was completed. The court noted that the trial was set to commence on May 19, 2015 and would likely be seven days long. The court also noted that “… there will be 2 possibly 3 motions at the outset – see trial management form. Ready for trial.”
[31] On May 5, 2015 counsel for Silva offered to consent to the dismissal of the claim and the counterclaim without costs. No response was received from counsel for the Petruccis. Counsel for Silva communicated this offer in writing to counsel for the Petruccis on May 12, 2015. This offer was rejected on May 13, 2015. Nevertheless, Silva delivered a Notice of Discontinuance in respect of his counterclaim on May 13, 2015.
[32] On May 19, 2015 the following order was made Justice Sanderson:
The court grants leave on the consent of both parties to discontinue the action and counterclaim. The costs shall be addressed by the judge hearing the motions on July 16/15. Pl see endorsement of Himel J. attached.”
[33] The endorsement of Justice Himel referenced above, also made on May 19, 2015, states:
This action was discontinued by both parties and counterclaim was disct’d. The issue of costs remains. The plaintiff has served its material May 19/15 and will file by May 21, 2015. The defendant will serve materials on June 2/15 and will file June 3/15. Reply by June 8/15. The matter will be heard on July 16/15. Counsel to confirm with Motions 10 or 15 days prior that proceeding.
[53] Accordingly, while the Petruccis claimed upwards of $3,000,000 from Silva they recovered nothing. Similarly, Silva claimed $5,000,000 from the Petruccis and he recovered nothing.
THE LAW
[34] Under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court has a broad discretion to determine by whom, and to what extent, costs of a proceeding shall be paid. However, this discretion is subject to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I will now turn to consider the relevant provisions of the Rules.
Rule 23.05 – Presumptive Cost Consequences of Discontinuance
[35] The starting point in this case is Rule 23.05 which provides that if an action is discontinued any party to the action may make a motion respecting costs of the action.
[36] In Carriere Industrial Supply Ltd. v. 2026227 Ontario Inc., 2013 ONSC 1016, [2013] O.J. No. 633, at para. 9, the court described the applicable principles under Rule 23.05:
As a result of changes to Rule 25 which came into effect in 2010, the entitlement of a defendant to costs for a discontinued action requires the bringing of a motion. …
As Master McLeod observed in N12 Consulting Corp. v. Hulford, “whether the action is treated as dismissed for delay or discontinued, the court has complete discretion to fashion a costs award that is in the interests of justice”. The authors of Archibald, Killeen and Morton, 2013 Ontario Superior Court Practice, regard the cost consequences of Rule 23.05(1) as “presumptive” and consider that “the appropriate test to be applied by the court in the exercise of its discretion under r. 23.05 may be called the ‘justified action test’”:
P must satisfy the court on a balance of probabilities that it had a bona fide cause of action, that it was not frivolous or vexatious and that there was some justification for commencement of the claim. Although r. 23.05 establishes a prima facie right to costs in favour of the defendant, it does not restrict the broad discretion of the court to determine costs on a case-by-case basis.
The authors of Morden & Perell, The Law of Civil Procedure in Ontario, First Edition, take a similar view:
In our opinion, the former case law remains relevant. Under the case law on the former rule, to be relieved of costs, the plaintiff must satisfy the court that the material filed discloses a bona fide cause of action that is not frivolous or vexatious and that he or she was justified in commencing a lawsuit.
Obviously, whether or not a defendant should be awarded costs on the discontinuance of an action will require a very fact-specific analysis of the circumstances giving rise to the initiation of the action and its discontinuance.
Rule 23.02 – Deemed Discontinuance of Counterclaim without Costs
[37] Rule 23.02 provides that when an action is discontinued against a defendant who has counterclaimed, the defendant may deliver within thirty days after the discontinuance a notice of election to proceed with the counterclaim and if the defendant fails to do so, the counterclaim shall be deemed to be discontinued without costs.
Rule 57.01 – Factors
[38] Rule 57.01(1) states that the following factors may be considered by the court when exercising its discretion to award costs:
(1) the result in the proceeding;
(2) any offer to settle or to contribute made in writing;
(3) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(4) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(5) the amount claimed and the amount recovered in the proceeding;
(6) the apportionment of liability;
(7) the complexity of the proceeding;
(8) the importance of the issues;
(9) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(10) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(11) a party’s denial of or refusal to admit anything that should have been admitted;
(12) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(13) any other matter relevant to the question of costs.
Result in the Proceeding – Indemnification
[39] Traditionally the purpose of an award of costs was to indemnify a successful party for its legal costs. While the result in the proceeding and the principle of indemnity continue to govern the award of costs under Rule 57.01(1), many other considerations have been introduced in the Rules of Civil Procedure that inform whether the interests of justice are served by an award of costs. In fact, under Rule 57.01(2), in a “proper case” costs may be awarded against a successful party.
[40] In British Columbia (Minister of Forest) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371,[^1] at paras. 20, 22, 25 and 26 the Supreme Court of Canada described the traditional approach to costs, also known as the indemnification principle, and its evolution as follows:
In the usual case, costs are awarded to the prevailing part after judgment has been given. The standard characteristics of costs awards … [are] as follows:
(1) They are an award to be made in favour of a successful or deserving litigant, payable by the loser;
(2) Of necessity, an award must await the conclusion of the proceeding, as success or entitlement cannot be determined before that time.
(3) They are payable by way of indemnity for allowing expenses and services relevant to the case or proceeding.
(4) They are not payable for the purposes of assuring participation in the proceedings. …
…. These background principles continue to govern the law of costs in cases where there are no special factors that would warrant a departure from them. …
[M]odern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer… . Costs can also be used to sanction behavior that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.
Indeed, the traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently. [emphasis added]
Rule 49.10 – Offer to Settle
[41] Where an offer to settle is: (1) made by a Plaintiff at least seven days before the commencement of the hearing; (2) not withdrawn and does not expire before the commencement of the hearing; and (3) not accepted by the Defendant, and the Plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the Plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.
[42] Where an offer to settle is: (1) made by a Defendant at least seven days before the commencement of the hearing; (2) not withdrawn and does not expire before the commencement of the hearing; and (3) not accepted by the Plaintiff, and the Plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the Plaintiff is entitled to partial indemnity costs to the date the offer was served and the Defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise.
Amount of Costs – Fairness, Reasonableness and Proportionality
[43] Another consideration under Rule 57.01(1) is that the amount of costs awarded should reflect what an unsuccessful party could reasonably expect to pay rather than the exact amount of costs actually incurred by the successful party. See: Davies v. Clarington (Municipality), 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52.
[44] Another relevant consideration is proportionality. Rule 1.04(1.1) provides that in applying the Rules of Civil Procedure the Court shall make orders that are proportionate to the importance and complexity of the issues, and to the amount of money involved, in the proceeding.
[45] In Elbakhiet v. Palmer, 2014 ONCA 544, 121 O.R. (3d) 616, a plaintiff in a personal injury action was awarded damages of $144,013 after a nine-week trial. An Offer to Settle of $145,000 was viewed as not more favourable than the jury’s award given the uncertainty in the interest provisions of the offer. The defendant was awarded costs of $576,842. The Court of Appeal reduced the amount of costs to $100,000, inclusive of disbursements and HST. The Court stated at para. 38:
…this amount takes into consideration all the factors to be considered under Rules 49 and 57, including the complexity of the matter and the manner in which the litigation was conducted, and in particular that the offer to settle was virtually the same as the Judgment. This amount is more consistent with the objectives of fairness and reasonableness and especially gives some attention to the need for some proportionality. [emphasis added]
[46] Further, although a costs award is typically based on partial indemnity, an elevated costs award may be made when: (1) an offer to settle is made under Rule 49.10; or, (2) the party has engaged reprehensible conduct. See: Davies, at para. 40.
ISSUE #1: SHOULD THE PETRUCCIS BE AWARDED THEIR COSTS OF DEFENDING THE COUNTERCLAIM AND PREPARING FOR THREE MOTIONS?
[47] In this case Oasi served its notice of discontinuance 25 days before the scheduled trial date. Two weeks before trial Silva offered to discontinue its counterclaim on the basis that the parties in both the claim and counterclaim would not seek their costs. This offer was rejected. About one week later, Silva served a Notice of Discontinuance of the Counterclaim.
[48] Had Oasi served its Notice of Discontinuance more than 30 days before the scheduled trial date and Silva did not file a notice of election to pursue the counterclaim within 30 days, then the counterclaim would have been deemed to have been dismissed without costs under Rule 23.02. However, Oasi did not serve its notice of discontinuance until 25 days before trial. Silva did not file a notice of election to proceed with the counterclaim. In fact, he made it clear that he did not wish to pursue his counterclaim so long as both parties agreed not to seek their costs for both the claim and counterclaim. When that offer was refused Silva served a Notice of Discontinuance of the Counterclaim. It was a responsible step taken by Silva to offer to discontinue his counterclaim without costs and, when that offer was rejected, to serve his Notice of Discontinuance. Relying upon Rule 1.04(2) of the Rules of Civil Procedure, it is my view that the principle of Rule 23.02 should apply in these circumstances.
[49] The objective of indemnifying a successful party for its legal costs remains the general rule in costs awards. Rule 23.02 implicitly reflects this principle. There is nothing about the discontinued claim, counterclaim or the three motions, including the allegations of misconduct made by both sides, that would justify avoiding the application of Rule 23.02 in the interests of the “efficient and orderly administration of justice.” See: Okanagan Indian Band, at para. 25. For instance, the claim, counterclaim or motions were not, on their face, frivolous or vexatious.
[50] Further, I found it perplexing that the Petruccis filed two banker’s boxes of materials for this motion, including all of their motion materials in respect of the three motions now moot, in an attempt to argue in great detail the merits of those motions as well as the claim and counterclaim when all of those matters have been discontinued. In my view on a motion for costs in these circumstances, this court should not be required to essentially undertake the trial and assessment of the merits which the parties have chosen to forego.
[51] For the above reasons, I dismiss the Petruccis’ claim for costs.
ISSUE #2: SHOULD SILVA BE AWARDED HIS COSTS OF DEFENDING THE CLAIM?
[52] Silva seeks his costs of defending the claim although to his credit he did not press his claim for costs. A trial has not been held and I am not in a position to determine that Oasi had no justification for the commencement of its action. Accordingly, an award of costs would not be warranted under Rule 23.05. Oasi advised the court that one of the reasons it discontinued its action against Silva was that the legal test for the claim for “unlawful interference with economic relations” had changed since the action was commenced with the result that Oasi may not be able to satisfy the test. A trial has not been held and I am not in a position to determine that Oasi had no justification for the commencement of its action. Accordingly, an award of costs is not justified under Rule 23.05.
[53] Further, as noted above, the general rule is that an award of costs serves to indemnify a successful party for its costs. There has not been a trial or other final determination of the claim on its merits and, as a result, neither party can claim success on the merits. As well, there are no circumstances which would require that an award of costs be made to Silva in the interests of “efficient and orderly administration of justice.”
[54] For the above reasons, I dismiss Silva’s claim for costs.
CONCLUSION
[55] Both parties sought their costs of this motion. In my view this motion should have been unnecessary given Silva’s offer to discontinue both the claim and counterclaim without costs to either party. In light of my decision, the Petruccis rejected a sensible offer. I award costs of this motion on a partial indemnity basis in the amount of $12,920.85 to be paid by the Petruccis to Silva forthwith. In my view this award of costs is fair, reasonable and proportionate.
Mr. Justice M. D. Faieta
Date: July 29, 2015
[^1]: This view was adopted in Hinse v. Canada (Attorney General), [2015] S.C.J. No. 35, 2015 SCC 35, at para, 170.