Court File and Parties

Citation: The Bank of Nova Scotia v. Donald, 2016 ONSC 3243

Court File No.: CV-14-508566

Date: 2016-05-17

Superior Court of Justice - Ontario

Re: The Bank of Nova Scotia for itself and on behalf of all creditors of Alexander Donald also known as Alexander Peter Donald, Plaintiff

And: Alexander Donald also known as Alexander Peter Donald, Elford & Donald Bros Ltd., and Donna Sandy Donald, Defendants

Before: Stewart J.

Counsel: Ian Klaiman, for the Plaintiffs Michael F. Cooper, for the Defendants

Heard: In Writing

Endorsement

[1] In my decision in this matter, I invited counsel for the parties to provide written submissions on costs if the subject could not be agreed upon by them.

[2] I now have received and considered those submissions.

[3] The Defendants Alexander Donald and Donna Sandy Donald were successful in resisting that part of the motion for summary judgment based on a claim of fraudulent conveyance. Donna Sandy Donald seeks costs of $11,159.55 on a substantial indemnity basis.

[4] In support of this position, Donna Sandy Donald relies on an offer to settle the motion made by her which generally reflects the ultimate procedural result achieved, but did not include any financial proposal to settle the motion.

[5] Counsel for the Plaintiff submits that costs should be in the cause in light of all the circumstances and what is described as a “close call” decision. Alternatively, he argues that costs should be on a partial indemnity basis and a substantial reduction should be applied to the amount of costs claimed.

[6] In my view, Donna Sandy Donald should receive an award of costs on the motion, but these should be on a partial indemnity basis.

[7] When all of the factors affecting the exercise of discretion as to costs are considered, I am of the view that an appropriate amount for the Plaintiff to pay Donna Sandy Donald is $7500.00, inclusive of all disbursements and applicable taxes. Such payment shall be made within 30 days of the date of release of this endorsement.

[8] As an addendum to my original decision, this trial will involve a fairly narrow issue of whether or not the conveyance was fraudulent. This should be a short trial which may be quickly and easily accommodated on the Civil Trial List. A pre-trial settlement conference should also be arranged by the parties.

Stewart J.

Date: May 17, 2016