Court File and Parties
Court File No.: CV-13-493578 Court File No.: CV-15-5272-00 (Brampton) Date: 2016-07-05 Ontario Superior Court of Justice
Between:
Court File No. CV-13-493578 Teresa Scalamogna and Lilianna Siggillino, Plaintiffs – and – Rosanna Di Toro, Egidio Di Toro, 1416134 Ontario Limited, 2377544 Ontario Inc., Daniela Di Toro, Robert Di Toro and Maurizio Occhiuto, Defendants
Court File No. CV-15-5272-00 (Brampton) And Between: Filomena Siggillino, Plaintiff – and – Rosanna Di Toro, Lilianna Siggillino, Teresa Scalamogna, Egidio Di Toro, Daniela Di Toro, Robert Di Toro and 2377544 Ontario Inc., Defendants
Counsel: Nella Macchia, for Plaintiff Teresa Scalamogna Cameron Fiske, for the Plaintiff Lilianna Siggillino Brian Radnoff and Meredith Jones, for the Defendants, Rosanna Di Toro, Egidio Di Toro and Daniela Di Toro Alan Price, for the Defendants, Robert Di Toro and 2377544 Ontario Inc. William S.M. Cord, for the Plaintiff Filomena Siggillino
Heard: Written Submissions
Costs Endorsement
Diamond J.:
[1] In my Endorsement released on June 10, 2016, I granted a motion brought by the defendant 2377544 Ontario Inc. (“237”) for a Vesting Order, and dismissed a motion brought by Filomena Siggillino (“Filomena”) for “her own” certificate of pending litigation (“CPL”) in the 2015 action, i.e. in addition to the CPL previously obtained by Filomena’s daughters Teresa Scalamogna (“Teresa”) and Lilianna Siggillino (“Lilianna”).
[2] Absent an agreement between the parties, I asked for costs submissions to be exchanged and filed with my assistant. I have now received and reviewed those costs submissions.
[3] To begin, and as set out at the outset of paragraph 34 of my Endorsement, Rosanna Di Toro, Egidio Di Toro and Daniella Di Toro seek their costs of an abandoned motion brought by Filomena in the 2013 action. That abandoned motion sought to add Filomena as a party to the 2013 action. Shortly after abandoning that motion, Filomena commenced the 2015 action and brought her unsuccessful CPL motion before me.
[4] The costs sought on a partial indemnity basis total $1,490.00, and consist of time spent reviewing Filomena’s motion materials along with preparing for her cross-examination (which she did not attend).
[5] Rule 37.09(3) of the Rules of Civil Procedure provides a responding party with a prima facie right to his/her costs of an abandoned motion payable forthwith, unless the Court orders otherwise. I see no reason to order otherwise. In fact, Filomena did not appear to take issue with the amount sought by Rosanna Di Toro, Egidio Di Toro and Daniella Di Toro.
[6] I therefore order Filomena to pay Rosanna Di Toro, Egidio Di Toro and Daniella Di Toro their costs of Filomena’s abandoned motion in the 2013 action on a partial indemnity basis in the all-inclusive sum of $1,490.00 payable forthwith.
[7] Turning now to the issue of costs of the motions argued before me on June 7, 2016, 237 and Robert Di Toro (“Robert”) claim their costs of both motions on a substantial indemnity basis against Filomena, Teresa and Lilianna (jointly and severally) in the amount of $74,011.05.
[8] As always, the Court is required to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of a successful party with a goal of fostering access of justice: Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.).
[9] Pursuant to Rule 57.01 of the Rules of Civil Procedure, the Court may consider the following factors when exercising its discretion to award costs:
- 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;
- 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;
- the amount claimed and the amount recovered in the proceeding;
- the apportionment of liability;
- the complexity of the proceeding;
- the importance of the issues;
- the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
- whether any step in the proceeding was,
- improper, vexatious or unnecessary, or
- taken through negligence, mistake or excessive caution;
- a party’s denial of or refusal to admit anything that should have been admitted;
- whether it is appropriate to award any costs or more than one set of costs where a party,
- commenced separate proceedings for claims that should have been made in one proceeding, or
- in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
- any other matter relevant to the question of costs.
[10] Costs typically follow the event, and I see no reason to depart from that standard rule. However, as held by the Court of Appeal for Ontario in Murano v. Bank of Montreal, 1998 ONSC 5633, the Court should only award costs on a higher scale in special and rare cases. Examples of such cases include where a party advanced unfounded allegations of fraud or similar improper conduct prejudicial to someone’s character or reputation.
[11] Robert and 237 submit that they are alleged to owe Filomena, Teresa and Lilianna trust and/or fiduciary duties, and the dismissal of Filomena’s CPL motion results in a finding that such allegations have not been made out. I disagree. To begin, as I found in my Endorsement there is no specific cause of action advanced against Robert/237 in Filomena’s claim, other than requests for the rescission of a transfer of the subject property, and an order that all the defendants hold the property in constructive and/or result in trust for the benefit of Filomena.
[12] Further, Filomena’s claim baldly alleges fiduciary duties owed by Robert to her, and despite attempts by counsel for Filomena, Teresa and Lilianna to ground Filomena’s request for a CPL in the tort of knowing receipt, there is no claim in knowing receipt in the 2015 action.
[13] There were no offers to settle which would engage Rule 49.10 of the Rules of Civil Procedure.
[14] I do not find the presence of any factors which would support an award of costs on a substantial indemnity basis. Costs of both motions shall therefore be awarded on a partial indemnity scale.
[15] Both Teresa and Lilianna submit that they ought not to be made responsible for Robert/237’s costs of responding to Filomena’s motion (as opposed to the costs of 237’s motion for a Vesting Order which they did oppose). The CPL motion was brought by Filomena within her 2015 action, but no doubt supported by Filomena’s daughters. Teresa did not file any materials on the CPL motion, although Lilianna was briefly cross-examined upon her affidavit filed in support of her mother’s motion.
[16] In my view, both Teresa and Lilianna ought to share some responsibility for Robert/237’s costs of Filomena’s motion. While the CPL motion was technically brought by Filomena, it was apparent to me that both Teresa and Filomena supported the motion and did contribute to its length and complexity.
[17] Finally, Filomena, Teresa and Lilianna take significant objection with the hours and hourly rates sought by Robert/237. I agree with their submissions. The material filed in support of the Vesting Order was minimal, and argument of that motion took up less than 20% of the time allocated for the hearing.
[18] While the material filed in response to Filomena’s CPL motion was more extensive, much of it consisted of summaries of the positions taken by the parties in the 2013 action. Cross-examinations did take place, but in total they lasted between 2-3 days.
[19] The dockets and Costs Outline filed in support of Robert/237’s submissions are difficult to follow and fail to expressly allocate specific hours to specific tasks related to the two motions. Apart from 2-3 days of cross-examinations, the balance of the material filed on the motions was relatively standard.
[20] In the circumstances, and having regard to the results achieved, the reasonable expectations of the parties, and the hours claimed, I make the following order (in addition to the $1,490.00 payable by Filomena to Rosanna Di Toro, Egidio Di Toro and Daniella Di Toro as set out above):
- Filomena, Teresa and Lilianna shall, on a joint and several basis, pay 237 its costs of the motion for a Vesting Order fixed on a partial indemnity basis in the all-inclusive sum of $10,000.00 and payable forthwith;
- Filomena shall pay Robert/237 their costs of the CPL motion fixed on a partial indemnity basis in the all-inclusive sum of $25,000.00 and payable forthwith; and,
- Teresa and Lilianna shall, on a joint and several basis, pay Robert/237 their costs of the CPL motion fixed on a partial indemnity basis in the all-inclusive sum of $7,500.00 and payable forthwith. This amount is also payable on a joint and several basis with the $25,000.00 payable by Filomena as set out in (b) above.