Court File and Parties

Court File No.: CV-19-00621960-000 Date: July 8, 2020 Ontario Superior Court of Justice

Between:

ANTHONY FALASCA and ARYLE DEVELOPMENTS INC., Plaintiffs (Robert A. Klotz, Counsel for the plaintiffs)

- and -

PAUL MAZZA, GREENFIELD CREEK INC., GOLDCOURT DEVELOPMENTS INC., MM GREEN DEVELOPMENT (STONEY CREEK) INC., MM GREEN DEVELOPMENT (BURLINGTON) INC., MAGED HUSSEIN SHIREEN, ANTHONY VOLPINI, LINDA ACETI, BRIE MAZZA aka BRIE MAZZA VOLPINI aka BRIE VOLPINI, NATASHA MAZZA aka TASHA MAZZA aka TASHA MAZZA-KELTON, JAMES W. OLIVER, JOHN A. CLEWORTH, MARY ANN LEY and TURKSTRA MAZZA ASSOCIATES, Defendants (Howard W. Reininger, Counsel for the defendants, Paul Mazza, Greenfield Creek Inc., Goldcourt Developments Inc., Anthony Volpini, Linda Aceti, Brie Mazza aka Brie Mazza Volpini aka Brie Volpini, Natasha Mazza aka Tasha Mazza aka Tasha Mazza-Kelton and Mary Ann Ley)

Heard: In writing

Endorsement on Costs

The Honourable Mr. Justice H. S. Arrell

Introduction

[1] The original motion was done in writing due to the suspension of in-court hearings of the Superior Court caused by COVID-19.

[2] The defendants Anthony Volpini, Linda Aceti and Mary Ann Ley sought an order striking the claims of the plaintiffs in their amended statement of claim as against them for disclosing no cause of action. The plaintiffs requested that the motion be dismissed.

[3] The defendants brought this motion under Rule 21 of the Rules of Civil Procedure.

Facts

[4] The statement of claim alleges fraud and other various tortious breaches against Mazza and various torts against the other defendants as a result of the purchase and sale of a piece of property in Hamilton.

[5] The defendant Mazza is a lawyer in Hamilton.

[6] The defendant Volpini is Mazza’s son-in-law; the defendant Aceti is Mazza’s wife and a real estate agent; the defendant Ley is an accountant or bookkeeper in Mazza’s law firm.

[7] The plaintiffs advised in their reply factum that they were not opposed to the claim being struck as against the defendant Ley and I so ordered.

[8] The claim against Aceti alleges damages for breach of fiduciary duty, negligence, oppression and improvident sale against her and others, along with aggravated and punitive damages. Aceti was the wife of Mazza.

[9] Aceti was the listing agent for the property alleged to be the improvident sale. She earned a commission of $25,000.00 on the alleged sale.

[10] The claim against Volpini alleges damages for breach of fiduciary duty, negligence, oppression and improvident sale against Volpini and others, along with aggravated and punitive damages. Volpini is Mazza’s son-in-law.

[11] I concluded that I must assume that the allegations pleaded could be proved. That being the case I further concluded that the allegations amply indicated a cause of action. I found that the pleadings were focused and specific in their allegations and provided adequate notice of the factual matrix out of which the claim for damages arose.

[12] I concluded that the pleadings showed a cause of action against Aceti and Volpini and their motion to strike the claim against them was dismissed. They now seek their costs. They indicate costs in the amount of $14,753.56 on a partial indemnity basis for approximately 24 hours work on this motion by senior counsel. Quite simply the plaintiffs argue that they were successful on the motion and should have their costs.

[13] The defendants argue that the result was mixed because it was only at the last moment that the plaintiff agreed in their reply factum to withdraw the claim against the defendant Ley. The defendants suggest that partial indemnity costs only should be payable. They further argue that 20 hours is more than sufficient time for a motion such as this and a partial indemnity rate of $350.00 per hour is much more reasonable than $475.00 per hour claimed by plaintiff’s counsel. I note that defence counsel has 33 hours listed on his bill of costs however he indicates that was caused by various delays and attendances in Toronto for a transfer motion. None of which I conclude is relevant as to the cost motion before me.

[14] Section 131 of the Courts of Justice Act provides that “costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.” Rule 57.01 of the Rules of Civil Procedure enunciates the general factors to be considered by the court in exercising its discretion in relation to costs. I have considered those factors.

[15] As noted by Armstrong J.A. in Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3rd) 291 (O.C.A.) the fixing of costs involves more than merely a calculation using the hours docketed and the cost grid. He further stated in para. 24, “In our view, the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.”

[16] The plaintiffs are entitled to costs against the defendants on a partial indemnity scale. There were no formal offers that I have been made aware of that would have any cost consequences.

[17] I find that the hourly rates and time spent by counsel for the plaintiff somewhat excessive given the issues involved and the complexity. I also find that the plaintiffs should have consented to the release of the defendant Ley long before the reply factum was filed. However, the plaintiffs were clearly the most successful on this motion.

[18] I am therefore reducing the total amount of the partial indemnity costs listed after taking into account the above factors.

Conclusion

[19] I have concluded that costs of $9,000.00 inclusive of taxes and disbursements is a fair and reasonable amount and an amount that the unsuccessful party would expect to pay taking into account all the factors mentioned previously in this decision.

[20] The defendants will pay these costs in trust to plaintiff’s counsel within 30 days of the release of this decision.

Arrell, J. Released: July 8, 2020