Court File and Parties

Court File No.: 07-35417 Date: 2017-11-21 Superior Court of Justice - Ontario

Re: Pachino Construction Co. Ltd, plaintiff And: Enzo Mizzi Bordonaro and Lydia Mizzi, defendants

Before: Mr Justice Ramsay

Counsel: Rocco A. Ruso for the plaintiff Greg Roberts for the defendant

Endorsement

[1] The defendants moved unsuccessfully for summary judgment (2017 ONSC 6430). The defendant Enzo Mizzi owes the plaintiff $416,000 on a judgment that was given in 1999. The plaintiff owes the defendants $69,000 costs for another action from 2007. The plaintiff seeks a declaration that it can set off the $69,000 against the $416,000. In refusing summary judgement I held that this is a genuine issue that requires a trial.

[2] The plaintiff seeks costs of the motion fixed at about $27,000 on partial indemnity or $40,000 on substantial indemnity. The defendant submits that costs should be fixed at $10,000 on a partial indemnity basis and reserved to the trial judge.

[3] The defendant Enzo Mizzi’s position is unattractive: I should be paid what I am owed even if I do not pay what I owe. I think that he is acting unreasonably in insisting on collecting a relatively small amount compared to the enormous debt he has successfully avoided paying. I also think his materials contained false information from his wife about her involvement in retaining and paying the lawyer on the lawsuit that resulted in the $69,000 order against the plaintiff. To me this all rises to the level of reprehensible conduct and I think substantial indemnity is warranted.

[4] Whatever the result of the trial, the defendants were unsuccessful in preventing the plaintiff from proceeding. I think that the plaintiff should have his costs of the motion in any event and that they should be payable now.

[5] I fix costs of the motion at $40,000 and order the defendants to pay them within 30 days.

J.A. Ramsay J. Date: 2017-11-21