Court File and Parties
COURT FILE NO.: 04-11695 (Hamilton) DATE: 20160526
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Rinaldo Ticchiarelli (Plaintiff) v. Nazzareno Ticchiarelli, 882897 Ontario Ltd., the Estate of Ermoli Piccioni, deceased, and John Doe as litigation guardian of the Estate of Danny Piccioni, deceased (Defendants)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Sean Lawler, for the Plaintiff Steven Pickard, for the Defendant, the Estate of Ermoli Piccioni, deceased Marcela Aroca, for the Defendants, 882897 Ontario Ltd. and John Doe as litigation guardian of the Estate of Danny Piccioni, deceased
HEARD: By written submissions dated February 18 to March 23, 2016
ENDORSEMENT – COSTS
[1] In February 2004, Rinaldo Ticchiarelli brought an action against Nazzareno Ticchiarelli, the Estate of Ermoli Piccioni, the Estate of Danny Piccioni and 882897 Ontario Ltd. The matters in dispute arose in June 1996. The individuals involved were members of the same extended family. The Statement of Claim included allegations of conspiracy, duress and undue influence against the individual and deceased defendants.
[2] All the defendants except Nazzareno Ticchiarelli (the plaintiff’s brother) brought motions to dismiss the action for delay. For oral reasons given in court on February 5, 2016, I granted these motions and dismissed the action. Costs were left to be determined based on written submissions.
[3] The parties are in agreement that the successful defendants should be awarded their costs, for both the motion to dismiss and the remainder of the action. I agree that a costs award in favour of the successful defendants is appropriate in this case. As indicated by the Ontario Court of Appeal in Bell Canada v. Olympia & York Developments Ltd., the successful party on a motion has a reasonable expectation of being awarded costs in the absence of special circumstances.
[4] The plaintiff and the successful defendants do not agree, however, on the scale or quantum of the costs to be awarded.
[5] Counsel for the successful defendants argued that costs should be awarded against the plaintiff on a full indemnity, or alternatively, a substantial indemnity basis. Among other things, they allege that (i) the plaintiff’s action was frivolous or vexatious, and (ii) the plaintiff and the defendant Nazzareno Ticchiarelli were acting in concert under an ostensible Mary Carter agreement.
[6] As noted by the Ontario Court of Appeal in Foulis v. Robinson, Mortimer v. Cameron, and McBride Metal Fabricating Corp. v. H & W Sales Co., costs are usually awarded on a partial indemnity basis. Substantial or full indemnity costs are awarded only in the “rare and exceptional case”, based on egregious or reprehensible conduct that warrants sanction against the offending party.
[7] In this case, I see no sufficient justification to departing from the usual order of partial indemnity costs. In my oral reasons for granting the motion to dismiss the plaintiff’s action, I found that there was inordinate delay by the plaintiff (a point conceded by plaintiff’s counsel) and prejudice to the successful defendants. However, I made no findings as to the merits of the action. On the evidence before me, I see no sufficient basis for concluding that the plaintiff’s action was frivolous or vexatious. As well, I agree with plaintiff’s counsel that the evidence before me does not establish collusion between the plaintiff and his brother or other improper conduct by the plaintiff that would justify an award of full or substantial costs in this case.
[8] With respect to quantum, I have reviewed the bills of costs provided by the successful defendants as well as the submissions of the parties relating to the amounts claimed. In his submissions, plaintiff’s counsel suggested a 70 per cent reduction to the full indemnity amounts claimed in order to arrive at partial indemnity costs that are appropriate in the circumstances. I do not agree with that approach. I found the amounts claimed to be generally reasonable in the circumstances, but considered a more modest downward adjustment to be appropriate in order to properly reflect the amount that an unsuccessful party could reasonably expect to pay, among other considerations. In any case, in fixing costs, the court is not strictly bound by the calculation of hours and time rates. Boucher v. Public Accountants Council for the Province of Ontario at para. 26.
[9] Accordingly, a costs award will issue in favour of the successful defendants, payable by the plaintiff within 30 days, as follows:
- The Estate of Ermoli Piccioni, deceased, is entitled to costs of the motion to dismiss in the amount of $20,000 and costs of the remainder of the action in the amount of $8,000.
- 882897 Ontario Ltd. and John Doe as litigation guardian of the Estate of Danny Piccioni, deceased, are entitled to costs of the motion to dismiss in the amount of $12,000 and costs of the remainder of the action in the amount of $22,000.
The Honourable Mr. Justice R.A. Lococo Released: May 26, 2016