Court File and Parties
COURT FILE NO.: 12-54421 DATE: 20191202 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE TORONTO-DOMINION BANK, operating a credit card division as MBNA, Plaintiff AND: ROSE COSTA also known as ROSARIA F. COSTA also known as ROSARIA DE FATIMA COSTA, Defendant
BEFORE: Mr. Justice Stephen E. Firestone
COUNSEL: Ryan McConaghy, for the Plaintiff Andrew R. Kerr, for the Defendant
HEARD: In writing
Endorsement
[1] By way of written endorsement dated November 7, 2019 I granted the Defendant’s motion to transfer and ordered that this action and any related enforcement proceedings be transferred from the East Region (Ottawa) to the Toronto Region. In my endorsement I indicated that if the parties could not agree on costs, they were to deliver their written cost submissions, in accordance with the timetable set, for my consideration. I have now received these submissions.
[2] Costs are within the discretion of the Court: Courts of Justice Act, s.131(1). The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) of the Rules of Civil Procedure sets out the factors the Court may consider in awarding costs.
[3] I have reviewed the submissions and bill of costs submitted. I have considered the factors enumerated under Rule 57 as well as the application of the principle of proportionality to the circumstances: Rule 1:04(1) of the Rules of Civil Procedure.
[4] A successful party is entitled to costs unless there are very good reasons not to award such costs: Schreiber v. Mulroney, 2007 ONSC 31754, [2007] O.J.No. 3191 (Sup.Ct.) at para. 2.
[5] I have taken into account the principles set forth by the Court of Appeal for Ontario in Boucher v. Public Accountants Counsel for Ontario, 2004 ONCA 14579, 71 O.R.(3d) 291 (C.A.), specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant.
[6] This was a very straightforward transfer motion which was heard in writing pursuant to Rule 13.1.02 of the Rules of Civil Procedure and the Consolidated Provincial Practice Direction. At the request of the moving party cross-examinations were initiated. Such cross-examinations were not necessary for the Court to determine the narrow issues on this motion.
[7] Counsel for the moving party seeks fees in the sum of $8,107.50 plus applicable HST and disbursements in the amount of $1,169.38. The time spent is not proportional to the issues in dispute. This is especially so in relation to the added time and disbursements associated with cross-examinations.
[8] I order that the Plaintiff pay to the Defendant partial indemnity costs of this motion in the all-inclusive amount of $1,990.00.