Court File and Parties

Court File No.: CV-12-445878A Date: 20160906 Superior Court of Justice - Ontario

Re: DAVID CARDENAS, a minor under the age of eighteen years represented by his Litigation Guardian, CARMEN VICTORIA CARDENAS, EVELYNE CARDENAS and CARMEN VICTORIA CARDENAS, personally, Plaintiffs

And: EUGENIO SALLESE, Defendant

And: CITY OF TORONTO, RODRIGO CARDENAS, THE ESTATE OF FRANCESCO CAVALLO, and ROSA CAVALLO, Third Parties

Before: R. F. Goldstein J.

Heard: In Writing

Appearance: J.D. Rioux, for Sallese David Bierstone – for Rosa Cavallo and Estate of Francesco Cavallo

Endorsement

[1] The Plaintiff is a young boy who was severely injured while riding his bicycle. The Defendant was driving a car that struck the Plaintiff. The Estate of Francesco Cavallo and Rosa Cavallo (who I refer to collectively as the Third Parties) owned the house fronting the road where the accident occurred. The Defendant sought validation of service of a statement of claim on Rosa Cavallo, who apparently lives in Italy. I dismissed the Defendant’s motion on June 23, 2016: Cardenas v. Sallese, 2016 ONSC 4178.

[2] The Third Parties seek their costs. In my view, there is no reason to depart from the usual practice where costs are awarded to the successful party. The Defendant concedes as much.

[3] The Third Parties seek $12,089.03 in partial indemnity costs, including $10,000 in fees. The balance represents disbursements and HST.

[4] The Third Party’s costs outline did not differentiate between costs incurred prior to the hearing before O’Marra J. and costs incurred prior to the hearing before me. Counsel for the Third Parties spent much of his written submissions detailing the steps taken to get the motion before O’Marra J. and deal with it. O’Marra J., however, decided that in the particular circumstances there would be no order as to costs. O’Marra J. did not order costs in the cause, or defer costs to the motions judge down the road. If I were to grant costs incurred prior to the motion before O’Marra J. that would, in effect, be over-ruling him and second-guessing him on material I do not have before me. I obviously will not be doing that.

[5] It follows, then, that the costs sought by the Third Parties are excessive – although not, I hasten to add, in the sense of “file padding”.

[6] The Defendant submits that costs in the amount of $7500 are appropriate for a motion that was reasonably short and relatively simple. I agree. That amount is fair and reasonable in the circumstances: Boucher v. Public Accountants Council for Ontario (2004), 71 O.R. (3d) 291 (C.A.). The Defendant will pay $7500 to the Third Parties forthwith.

R. F. Goldstein J. Date: September 6, 2016