Court File and Parties

COURT FILE NO.: CV-17-568076

DATE: 20180410

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SAM GREEN, Plaintiff

– AND –

BRIAN SHAMASH, ROSEANGELA DINOTO, PHILLIPO DINOTO, EUROMART REALTY LTD., MARK ANTHONY SALERNO and JOSEPH MARSALA, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: James Srebrolow and Gianmarco Fabiano, for the Plaintiff David Steinberg, for the Defendant, Brian Shamash Pietro Palleschi, for the Defendants, Roseangela Dinotto and Phillippo Dinoto

HEARD: Costs submissions in writing

COSTS ENDORSEMENT

[1] On March 16, 2018, I released my judgment dismissing the Plaintiff’s action. The Defendants are entitled to their costs.

[2] The Defendant, Brian Shamash (“Shamash”), and the Defendants, Roseangela Dinotto and Phillippo Dinoto (the “Dinotos”), each made offers to settle. The terms of those offers were that the Plaintiff dismiss the action with prejudice, and pay a substantial portion of the Defendants’ respective costs. The Plaintiff did not accept these offers, and the judgment reflects that the Defendants have achieved what they offered.

[3] These offers fall within the scope of Rule 49 of the Rules of Civil Procedure. Even if they did not, this would be an appropriate case for costs to be awarded on a substantial indemnity scale. While nothing about the Plaintiff’s counsel’s conduct of the action itself was abusive or unusual, it is surprising that the Plaintiff sued the Defendants at all. The claim was always a specious one, and only served to highlight the Plaintiff’s poor judgment and business ethics. It is difficult for a court to condone this use of the litigation process.

[4] I will therefore exercise my discretion under section 131 of the Courts of Justice Act to award costs on a substantial indemnity scale.

[5] Counsel for Shamash has submitted a Bill of Costs seeking a total of $33,362.34, including disbursements and HST, while counsel for the Dinotos has submitted a Bill of Costs seeking a total of $24,712.82. Neither of these amounts is particularly high given the cost of litigation today; indeed, both are more in keeping with what one might expect for partial indemnity rather than substantial indemnity costs in a motion of this size and importance to the parties.

[6] I note that counsel for the Plaintiff has submitted a Bill of Costs indicating that the Plaintiff incurred costs in the total amount of $28,227.72 – i.e. quite close to and mid-range between the amounts sought by the two sets of Defendants. Accordingly, the level of costs sought by each of the Defendants is within the reasonable range that the Plaintiff will have expected the successful parties to seek: see Rule 57.01(1)(0.b).

[7] The Plaintiff shall pay costs to Shamash in the all-inclusive amount of $33,362.34. The Plaintiff shall also pay costs to the Dinotos in the all-inclusive amount of $24,712.82. All of these costs are payable within 30 days of the date of this Costs Endorsement.

Morgan J.

Date: April 10, 2018