COURT FILE NO.: CV-17-131492-00

DATE: 20220922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE RIVAS

Plaintiff

– and –

MICHAEL ANOBILE

Defendant

Doug LaFramboise, for the Plaintiff

Domenic Saverino, for the Defendant

Ruling on costs

mccarthy j.

[1] Following a 4 day “mini-trial”, the Plaintiff’s claim was dismissed for the reasons set out in my reasons for judgment dated June 9, 2022.

[2] The Defendant now seeks his costs on a substantial indemnity basis. The Defendant requests the sum of $75,622.27 which is inclusive of HST on fees and disbursements of $2,130.52.

[3] The Plaintiff asserts that the parties should either bear their own costs or that the Plaintiff should in fact recover the sum of $16,892.83; the argument being that the Plaintiff’s costs of resisting a summary judgment motion should not only serve to offset whatever reasonable trial costs the Defendant might be awarded, but leave the Plaintiff entitled to a net costs award of her own.

[4] Costs of and incidental to a proceeding are in the discretion of the court: section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] In exercising that discretion, the court is directed to consider the principles and factors found in rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Analysis

[6] With respect, the Plaintiff’s argument is misplaced. The summary judgment motion was not so much dismissed as traversed to a mini-trial, an option which was made available to the motions judge under the applicable rule 20.04. The outcome of that mini-trial saw the the Plaintiff’s claims dismissed.

[7] It follows that the Defendant was entirely successful in resisting the Plaintiff’s claim. The hybrid nature of the mini-trial did help to simplify the issues and streamline the process. Nevertheless, the trial did consume the better part of four days, a result which was not likely envisaged or intended by the motions judge.

[8] Notwithstanding, my reasons made it abundantly clear that I rejected much of the evidence of the Plaintiff. Moreover, I found that her trial evidence differed markedly from her affidavit evidence. This served not only to undermine any weight that could be afforded to either type of evidence, but also to seriously damage the Plaintiff’s overall credibility.

[9] There is no basis to deny costs to the Defendant, who is presumptively entitled to such an award as the successful party. There was no divided success here. No breach of fiduciary duty or trust was found. There were no quantifiable damages. The proceeding was moderately complex. The amount sought by the Plaintiff exceeded $1 million. The specter of such a judgment alone no doubt made defending the claim of great importance to the Defendant. As stated, the Plaintiff essentially recanted much of what was contained in her affidavit; had she been truthful from the outset, summary judgment might well have been granted and the trial averted. The principle of proportionality is certainly engaged here; but considering the amount claimed, the nature of the allegations (fraudulent diversion), and the relief sought ( punitive damages), nothing short of the stoutest and most tenacious of defences had to be mounted.

[10] I would stop short, however, of awarding the Defendant substantial indemnity costs.

[11] As a fiduciary, the Defendant owed the Plaintiff a proper accounting. There is no evidence that one was provided prior to the litigation. To the extent that the Defendant kept records of transactions, they tended towards cryptic and opaque (viz. the undocumented loan transaction involving his sister Grace Ferri).

[12] I am not satisfied that the Defendant was forthcoming about his motivation or rationale for devising the management plan and acting in the role of trustee for the Plaintiff.

[13] As set out in my reasons, the evidence persuaded me that the Defendant overstated the value of the property to third party lenders in order to obtain financing. This type of deception should not be encouraged.

[14] I did not accept the Defendant’s explanation for why he would not have simply co-signed for new mortgage loans if his intention was purely to assist the Plaintiff with re-financing.

[15] The Defendant adamantly refused to admit that he was a trustee or fiduciary for the Plaintiff when the facts glaringly and inexorably pointed to such a conclusion. Had this simple fact been admitted, the court might have been able to proceed by way of a simple passing of accounts which might have taken up a day or two, but certainly not four to five days of court time.

Partial Indemnity Costs

[16] I would award the Defendant costs on a partial indemnity scale as sought. That award is entirely proportionate, justified and reasonable in the circumstances. I am not prepared to award costs for the summary judgment hearing itself. The Defendant’s cost outline does not appear to claim for attendance at the hearing in any event. As well, the mini-trial did little to reduce the time required for ultimate adjudication – a more conventional trial would have been similar in both content and duration. The hours set out for preparation and attendance at the various events appear entirely reasonable and justified. The cross-examination of the Plaintiff demonstrated a high level of advocacy and a focused attention to detail on the part of Mr. Saverino. The hourly rate claimed is reasonable for a lawyer of Saverino’s experience and skill. I find that hourly rates limited to any costs grid would be wholly inadequate to indemnify the successful Defendant. The principle of indemnification demands that the Defendant be made as whole as possible after having defended a wholly unmeritorious claim. The disbursements appear reasonable and necessary.

Disposition

[17] The Plaintiff shall therefore pay the Defendant costs of the action fixed and payable forthwith in the amount of $58,443.75 inclusive of fees, HST and disbursements.

[18] There shall be an order to go accordingly

McCarthy J.

Released: September 22, 2022