SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-480546

DATE: 20150812

RE: Rosen Lyubomirov Andonov, Plaintiff

AND:

The Toronto-Dominion Bank, Defendant

BEFORE: Pollak J.

COUNSEL:
Bernard B. Gasee, for the Plaintiff

Eric Golden and Chad Kopach, for the Defendant

HEARD: February 11, 2015 and May 25, 2015

COSTS ENDORSEMENT

[1] I have read and considered the submissions of the parties, and I have taken into account the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.0. 1990, Reg. 194. I am required to award costs that are reasonable and fair. See Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[2] I agree with the characterization of the costs agreement summarized by counsel for TD as follows:

As a preliminary matter, the agreement between counsel regarding costs reached on the day of the hearing of the motions related to the quantum of costs each would seek for the entire action , including the motions, on a partial indemnity basis. However, this agreement did not in any way preclude argument on (i ) scale; (ii ) whether the plaintiff was entitled to costs even if successful; and (iii) whether TD was entitled to costs even if unsuccessful. This entire proceeding was conducted by the plaintiff with the knowledge that TD's position was that it should have been brought as a Small Claims Court action.

[3] With respect to the Plaintiff’s position that the Court has awarded greater damages than his offer to settle. I also agree with the reasoning of the TD as to why he has not:

“The plaintiff's allegation that he beat his Offer to settle dated November 26, 2014, is wrong. The plaintiff's offer to settle was for “$19,503.18 plus simple interest thereon at the rate of 8% per annum from January 1, 2013", plus partial indemnity costs. At 8% per annum, the per diem interest was $4.27. There were 771 days between January 1, 2013, and February 11, 2015, making the total amount payable under the plaintiff's Offer $22,795.35 ($19,503.18 plus $3,292.17 in interest), plus costs. The Reasons for Judgment require TD to pay the plaintiff the sum of $19,618.80 plus Courts of Justice interest ($787.34). The plaintiff did not beat his Offer to Settle, so the costs con sequences of Rule 49.10 do not apply.”

[4] Further, I accept TD’s submissions regarding the Plaintiff’s insistence that he proceed in Superior Court rather than Small Claims Court. I do not accept the Plaintiff’s argument that he needed a full detailed discovery. The Court is persuaded in this case to use its discretion pursuant to Rule 57.05 to decline to award costs to the Plaintiff of this action because it should have been brought and heard in Small Claims Court.

[5] I do not, however, agree that TD should be awarded costs as it has requested. It was the TD’s agent who was responsible for all of the misconduct. I therefore make no cost award.

Pollak J.

Date: August 12, 2015