Court File and Parties

COURT FILE NO.: CV-18-607064-0000 DATE: 2019/06/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Victor Vetro and LINDA MONTANARI Applicants – and – MARILYN GAIL BARBOUR Respondent

COUNSEL: Rolf M. Piehler for the Applicants Benjamin G. Blay for the Respondent

HEARD: In writing

APPLICATION UNDER the Trustee Act, R.S.O. 1990, c. T.23, ss. 16 and 60 (1) and Rules 14.03 (a), (b), and (c) of the Rules of Civil Procedure.

PERELL, J.

REASONS FOR DECISION - COSTS

[1] The Respondent, Gail Barbour, was the registered title holder of 114 Sleepy Hollow Road in the Town of Blue Mountains. The Applicants, Victor Vetro and Linda Montanari, alleged that Ms. Barbour held the property in trust for Mr. Vetro. Pursuant to sections 16 and 60 (1) of the Trustee Act, Mr. Vetro and Ms. Montanari brought an application to have Ms. Barbour removed as trustee and replaced by Ms. Montanari, and they sought the transfer of the property to Ms. Montanari.

[2] Mr. Vetro’s and Ms. Montanari’s application was never argued. After Ms. Barbour, in her responding material, pointed out that Mr. Vetro was an undischarged bankrupt, his trustee in bankruptcy, Crowe Soberman Inc., took steps to be reappointed, and Crowe Soberman Inc. brought an application of its own with respect to the 114 Sleepy Hollow Road property.

[3] The trustee in bankruptcy joined Mr. Vetro, Ms. Montanari, and Ms. Barbour as parties to its application. The trustee in bankruptcy’s application was settled, and it was agreed that Mr. Vetro’s and Ms. Montanari’s application should be dismissed.

[4] There, however, was no agreement about the costs of the dismissed application.

[5] Ms. Barbour seeks substantial indemnity costs of $26,971.69, all inclusive. Mr. Vetro and Ms. Montanari submit that there should be no costs awarded because the applications were resolved on consent and judgments were issued on the basis of the consents filed by the parties.

[6] In my opinion, Ms. Barbour is entitled to costs but not on a substantial indemnity basis. I assess her costs at $16,500, all inclusive, payable by Mr. Vetro and Ms. Montanari.

[7] The practical effect of the agreement reached among Mr. Vetro, Ms. Montanari, Ms. Barbour and Crowe Soberman Inc. was that Mr. Vetro’s and Ms. Montanari’s application was withdrawn. Technically speaking, the outcome of the application was a dismissal with the matter of costs to be determined, and, technically speaking, since Mr. Vetro’s and Ms. Montanari’s application was dismissed, they were the unsuccessful parties.

[8] Viewed from these various perspectives, I am satisfied that Ms. Barbour is entitled to her reasonable costs on a partial indemnity basis.

[9] Ms. Barbour seeks a substantial indemnity, in part, because of matters upon which I did not adjudicate. Confined just to the record that was before me, I think the appropriate scale for costs is a partial indemnity.

[10] I therefore award Ms. Barbour costs of $16,500, all inclusive, payable by Mr. Vetro and Ms. Montanari. Order accordingly.

Perell, J. Released: June 5, 2019