COURT FILE NO.: CV-20-00640388-0000
DATE: 2020-06-26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Zane Mersky and Katherine Konn, Plaintiffs
AND:
Carmine Coccimiglio and Sage Real Estate Limited, Defendants
BEFORE: Schabas J.
COUNSEL: Jerome S. Morse, counsel for the Plaintiffs
Jeffrey S. Klein, counsel for the defendant Sage Real Estate Limited
No one appearing for the defendant Carmine Coccimiglio
HEARD: In writing, week of June 22, 2020
ENDORSEMENT
[1] On January 11, 2020, the plaintiffs entered into an Agreement of Purchase and Sale (“APS”) with the defendant Carmine Coccimiglio, (“Coccimiglio”) for the sale of a residential property located at 102 Seaton St. in Toronto (the “Property”). The purchase price was $1,785,000. On January 13, 2020 the plaintiffs provided a deposit of $100,000 to the defendant Sage Real Estate Limited (“Sage”), Coccimiglio’s agent, to be held in trust pending the closing of the transaction, which was set for April 15, 2020.
[2] Although it now appears that Coccimiglio instructed Sage not to accept the deposit if it was not received within 24 hours of the signing of the APS, as the APS required, Sage accepted the funds even though they were late. The record indicates that Coccimiglio wished to remain in the house as a tenant on favourable terms, such that enforcing, or threatening to enforce the strict terms of the APS may have given him leverage to achieve his objective.
[3] However, instead of advising the plaintiffs that the delivery of the deposit was late, and terminating the transaction, Coccimiglio said nothing. The plaintiffs conducted a termite inspection on January 14 and delivered a Notice of Fulfillment on January 15, 2020.
[4] There was then discussion of Coccimiglio renting the Property, but he was advised by the plaintiffs on February 7, 2020 that they would not rent it to him. But Coccimiglio did not terminate the APS then, either. Instead he took to Facebook and attacked Sage for accepting the deposit and failing to negotiate a lease for him, and he stated that he had agreed to a sale price that was below the list price on the understanding that he would be given an opportunity to lease the Property. However, there is also evidence that the market was rising at the time and Coccimiglio may have regretted his decision to sell in January.
[5] On February 20, 2020 Coccimiglio advised the plaintiffs that the APS was void, or had “lapsed,” and that he would not complete the transaction.
[6] Nevertheless, despite the plaintiffs accepting Coccimiglio’s repudiation of the APS, and despite demands from the plaintiffs for the return of their deposit, Sage refused to return the deposit funds without Coccimiglio’s consent, which was withheld by Coccimiglio following the termination of the APS in February, and even following the closing date of April 15, 2020. Even after the commencement of this action on May 1, 2020, Coccimiglio withheld his consent to the return of the deposit. A case conference was held on May 15, 2020, and a notice of motion for partial summary judgment for the return of the deposit was served on May 21,2020. A further case conference was held on May 22, 2020. However, it was not until the delivery, on May 27, 2020, of the detailed motion record that Coccimiglio reversed his position and provided his consent to the return of the deposit monies. Coccimiglio then blamed Sage for the delay, even though he had previously taken the position that he was objecting to the return of the funds.
[7] Although the record is not entirely clear as to whether the funds have been returned, the plaintiffs were and are entitled to the return of the deposit, and they appear to have obtained it as their factum has been modified to focus on seeking costs for what is now described as a consent motion which they were forced to bring in order to cause Coccimiglio to change his position.
[8] The plaintiffs now seek costs on a substantial indemnity basis for this motion, arguing that Coccimiglio had no basis to withhold his consent, and that Sage ought to have returned the deposit even without Coccimiglio’s consent following the termination of the APS.
[9] Coccimiglio did not respond to the motion for summary judgment. He was briefly represented by counsel respecting costs in early June, but a Notice of Intent to Act in Person was filed on June 14, 2020. The motion for summary judgment, and now costs, was set to be heard in writing during the week of June 9-12, but was adjourned to the week of June 22, 2020 at Coccimiglio’s request. However, Coccimiglio has not responded to the costs submissions of the plaintiffs, other than sending emails to the court advising that he was ill and providing a short “to whom it may concern” note from a physician at the St Michael’s Hospital Family Health Team dated June 14, 2020 saying he was unwell and asking that he be excused “from work duties” from June 12 to June 19. This is insufficient evidence on which to adjourn the request for costs of the motion, to which the plaintiffs are entitled.
[10] In my view, the claim for substantial indemnity costs against Coccimiglio should be granted. Coccimiglio has given no valid explanation for withholding his consent and for actively telling Sage not to release the funds. Coccimiglio is a lawyer with considerable experience of real estate transactions. He was belligerent and made unfounded accusations of harassment and threats to initiate complaints to the police, the Law Society and the Human Rights Tribunal during the course of his dealings with the plaintiffs and their counsel. There were offers to settle, one of which appears to have been accepted and then Coccimiglio reneged on it, which could have resolved the matter. Case conferences were held, and the plaintiffs were required to prepare an extensive record, including two supplementary affidavits as Coccimiglio’s position changed, and a factum was almost complete when Coccimiglio capitulated. This conduct is deserving of censure by way of an elevated award of costs.
[11] The plaintiffs shall therefore be awarded costs of the motion on a substantial indemnity basis in the amount of $26,875.00, comprising $23,500.00 for substantial indemnity fees, $3,055.00 for HST on substantial indemnity fees and $320.00 for partial indemnity disbursements inclusive of HST.
[12] However, costs are not warranted against Sage which was stuck in the middle of the dispute. Although the plaintiffs argue that Sage was obliged to return the funds even absent Coccimiglio’s consent, this matter was not litigated and the matter was resolved once Coccimiglio’s position changed. I conclude, therefore, that in the circumstances of this case there should be no costs awarded against Sage.
[13] Accordingly, an order should issue granting the plaintiffs partial summary judgment as set out in their notice of motion, with costs payable by Coccimiglio to the plaintiffs in the amount of $26,875.00.
Schabas J.
Date: 2020-06-26