COURT FILE NO.: CV-21-00672037-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SERGIO GRILLONE and GRILLONE LAW FIRM
Applicants
- and -
GEORGE BEKIARIS and BEKIARIS LAW FIRM
Respondents
Matthew G. Moloci for the Applicants
George Bekiaris, self-represented
Randy Schliemann for the Bank of Nova Scotia
Eric Sherkin for BridgePoint Financial Services Limited Partnership I
Aaron Rosenberg for Bluecore Capital Inc.
David Fogel for Mandeep Saggi, Neelam, Saggi and Sucha Saggi
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs decision.
[2] The background to this decision is as follows:
a. There was an agreement, referred to as a Referral Agreement, between two law firms. The Applicants, Sergio Grillone and Grillone Law Firm (collectively “Grillone”) was one of the law firms, and the Respondents George Bekiaris and Bekiaris Law Firm (collectively “Bekiaris”) was the other law firm.
b. There was also a Business Banking Services Agreement that was part of Mr. Grillone’s banking arrangements with the Bank of Nova Scotia. Pursuant to that agreement, Mr. Grillone is liable for all costs of enforcement of his financing arrangements with the bank. Mr. Grillone’s obligations include “the payment of all [the Bank’s] costs, charges, expenses and fees, including without limitation, legal fees on a solicitor and client basis, that relate to the agreement or the enforcement or realization of security.
c. By application Grillone claims payment of $119,495.63 from Bekiaris under the Referral Agreement. Bekiaris did not oppose the application, but he insisted that only $82,157.90 was owing under the Referral Agreement.
d. Grillone’s application drew the attention of some of Grillone’s creditors. The creditors, Bank of Nova Scotia, BridgePoint Financial Services Limited Partnership I, Bluecore Capital Inc., and Mandeep, Neelam and Sucha Saggis (the “Saggis”) did not oppose Bekiaris paying what he owes Grillone, but they did object to it being paid directly to Grillone because its assets have been frozen pursuant to a Mareva injunction granted by Justice Kimmel in proceedings brought by the Saggis.
e. More precisely, Grillone’s application was for: (a) an order for payment of referral fees, disbursements and applicable taxes due and owing by George Bekiaris and Bekiaris Law Firm to Scarfone Hawkins LLP, in trust; (b) an order for payment out of trust from the proceeds in (a) above for legal fees, professional fees, disbursements and applicable taxes, as well as retainer payments for legal and professional services rendered or to be rendered on behalf of Sergio Grillone and Grillone Law Firm (Grillone seeks $55,994.80 for payment of legal fees for litigation and business expenses); and (c) an order for payment into court of the remainder funds in trust after the payments out of trust in (b) above.
f. I found that Bekiaris owed Grillone $82,157.90 and I ordered that this sum should be paid into court pursuant to Rule 72. I otherwise dismissed Grillone’s application.[^1]
g. I ordered that if the parties could not agree about the matter of costs, they may make brief submissions in writing beginning with the submissions of Bekiaris, the Bank of Nova Scotia, BridgePoint Financial Services Limited Partnership I, Bluecore Capital Inc., and the Saggis followed by Grillone’s submissions.
[3] Bekiaris who was successful on the issue of how much should be paid into court seeks a cost award of $2,260 all inclusive.
[4] Grillone submits that Bekiaris should receive no costs because he should be treated as a self-represented litigant who was not performing legal services but being sued to enforce the referral agreement under which he was obliged to pay funds to Grillone.
[5] Bekarias did not breach the referral agreement and was always prepared to pay what he rightfully owed, but I am prepared to treat Bekiaris as a self-represented litigant in setting the amount that is owed.
[6] In order to recover costs, the self-represented litigant is required to prove lost opportunities for remuneration and that he or she devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation.[^2] If an opportunity cost is proved, the self-represented litigant should receive a moderate or reasonable allowance for the loss of time devoted to preparing and presenting the case.[^3]
[7] It is patent that Bekarias satisfies the pre-conditions for an award to a self-represented litigant and his claim for $2,260, all inclusive, is a reasonable allowance for the loss of time for remunerative work. I, therefore, award Bekarias costs of $2,260, all inclusive.
[8] Relying on the terms of its banking arrangements with the Bank of Nova Scotia including its Business Banking Services Agreement, The Bank of Nova Scotia seeks costs of $7,998.55, all inclusive, in accordance with Rule 57.01(4)(d) of the Rules of Civil Procedure, which states:
Authority of Court
(4) Nothing in this rule or rules 57.02 to 57.07 affects the authority of the court under section 131 of the Courts of Justice Act,
(d) to award costs in an amount that represents full indemnity; or
[9] In the immediate case, the Bank of Nova Scotia was a successful party in as much as it succeeded in ensuring that all the money genuinely owed to Grillone was paid into court and none of it was diverted for Mr. Grillone’s legal expenses. As a successful party, the Bank would be in the normal course entitled to costs on a partial indemnity basis.
[10] Where contractual arrangements, for example in a mortgage, lease or franchise agreement, provide for the payment of costs on a substantial or solicitor-and-client scale or on a full indemnity basis for the enforcement of the contract, the court may also exercise its discretion to award costs on that scale.[^148] In the circumstances of the immediate case, the Bank is entitled to costs on a full indemnity basis.
[11] I, therefore, award the Bank of Nova Scotia $7,998.55, all inclusive.
[12] Orders accordingly.
Perell, J.
Released: July 22, 2022
COURT FILE NO.: CV-21-00672037-0000
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SERGIO GRILLONE and GRILLONE LAW FIRM
Plaintiffs
- and –
GEORGE BEKIARIS and BEKIARIS LAW FIRM
Respondents
REASONS FOR DECISION – COSTS
PERELL J.
Released: July 22, 2022
[^1] Grillone v. Bekiaris, 2022 ONSC 3766.
[^2] Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228; Im v. BMO Investorline Inc., 2019 ONSC 3339 (Master); Edelstein v. Monteleone, 2017 ONSC 7446 (Div. Ct.); Mustang Investigations v. Ironside, 2010 ONSC 3444, [2010] O.J. No. 3184 (Div. Ct.), rev’g [2009] O.J. No. 3848 (S.C.J.).
[^3] Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 22; Mitchinson v. Marshall Kirewskie, Barristers and Solicitors, 2018 ONSC 7419; Charendoff v. McLennan, 2012 ONSC 7241; Mustang Investigations v. Ironside, 2010 ONSC 3444, [2010] O.J. No. 3184 at para. 23 (Div. Ct.), rev’g [2009] O.J. No. 3848 (S.C.J.).
[^148] Potentia Renewables Inc. v. Deltro Electric Ltd., 2019 ONCA 779; Royal Bank v. Edna Granite & Marble Inc., 2014 ONSC 3377; Mayfair Tennis Courts Ltd. v. Nautilus Fitness & Racquet Centre Inc., [1996] O.J. No. 3099 (Gen. Div.); Cabot Trust Co. v. D’Agostino (1992), 1992 CanLII 7507 (ON SC), 11 O.R. (3d) 144 (Gen. Div.); Collins v. Forest Hill Investment Corp., [1967] O.J. No. 1024 (Co. Ct.); M.M. Orkin, The Law of Costs, 2d ed., looseleaf (Aurora, ON: Canada Law Book, 2010), para. 219.1.1.