Court File and Parties

Court File No.: CV-20-635008-0000
Date: July 10, 2025
Court: Superior Court of Justice – Ontario

Plaintiffs:
Enzo Mizzi, Lydia Mizzi, Christina Mizzi, Phil Mizzi, E.J. Mizzi, Joe Mizzi, Nathasha Mizzi, Manuele Adrian Mizzi, and Carmelo Mizzi

Defendants:
Michael Cavanagh (aka Michael W. Cavanagh, aka Mick Cavanagh, aka Mic Cavanagh), David Franklin, Jacob Patel (aka Jack Patel), and Ase Deliri

Before: Rohit Parghi

Counsel:
Norman John Groot, for the Defendant/Moving Party Ase Deliri
Julian Binavince, for the Plaintiffs/Responding Parties

Heard: July 9, 2025

Endorsement on Costs

[1] The Defendant Ase Deliri brought a motion for summary judgment. The hearing of the motion was adjourned several times to enable the Plaintiffs to sort out their counsel arrangements. It was only very recently that they did so. They now have counsel, through whom they have agreed to discontinue the action against Mr. Deliri. The only issue before me now is costs to Mr. Deliri for the motion and action as a whole.

[2] This matter has had a protracted procedural history which I will not summarize in its entirety. I do note that in November 2021, Mr. Deliri served an offer to settle his motion, which regrettably seems to not have been relayed to the Plaintiffs by their then-counsel and to which they never responded. In December 2022, Mr. Deliri served the record for his summary judgment motion, to which the Plaintiffs did not respond. In 2024 and 2025, there were various Civil Practice Court attendances and case conferences during which only some Plaintiffs attended and their now-former counsel was still on the record. Akazaki J. gave clear instructions in his case conference endorsements about what steps the Plaintiffs had to take if, as they claimed, they now wished to accept the offer. They did not take those steps. Akazaki J. set a timetable for this motion with this hearing date peremptory on the Plaintiffs, noting that Mr. Deliri had had to endure several adjournments while the Plaintiffs tried to get their house in order.

[3] I am now advised that all of the Plaintiffs wish to discontinue the action against Mr. Deliri. The only issue before me is costs. The Plaintiffs acknowledge that Mr. Deliri is entitled to his costs but the parties cannot agree on the appropriate scale or quantum.

[4] In exercising my discretion to fix costs under section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, I may consider the factors enumerated in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those factors include the result achieved, the amounts claimed and recovered, the complexity and importance of the issues in the proceeding, the principle of indemnity, the reasonable expectations of the unsuccessful party, and any other matter relevant to costs.

[5] In Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, para. 60, the Court of Appeal for Ontario restated the general principles to be applied when courts exercise their discretion to award costs. The Court held that, when assessing costs, a court is to undertake a critical examination of the relevant factors, as applied to the costs claimed, and then “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable”.

[6] Mr. Deliri seeks his costs for the action on a full indemnity basis. He states that the Plaintiffs’ conduct, combined with the fact that he sought full indemnity costs in his Statement of Defence, entitle him to such costs.

[7] In the alternative, Mr. Deliri seeks his costs on a partial indemnity basis up to the date of his November 2021 offer to settle, and substantial indemnity costs thereafter. He states that the offer was a Rule 49 offer and as such the costs consequences in Rule 49 ought to apply.

[8] I decline to grant full indemnity costs. Such costs are awarded only in response to the most extreme conduct by parties. They are not properly granted here. While the Plaintiffs’ conduct was at times problematic and did unnecessarily lengthen the proceedings and result in a disproportionate use of judicial resources, it is not conduct that is so egregious as to warrant full indemnity costs. Additionally, the Plaintiffs’ conduct in respect of the two case conferences and Civil Practice Court attendance has been addressed in Akazaki J.’s costs award in respect of those three attendances.

[9] I grant partial indemnity costs to the date of the offer and substantial indemnity costs thereafter. Mr. Deliri served an offer to settle on November 12, 2021. The offer was to consent to a dismissal without costs until November 30, 2021, and thereafter to consent to a dismissal with costs to be assessed from November 12, 2021 until the date of acceptance of the offer. The offer remained open until after the commencement of trial. The result of the Plaintiffs’ discontinuance of the claim against Mr. Deliri is that Mr. Deliri is now released from the litigation and entitled to his costs for the action. As such, the offer that Mr. Deliri served on the Plaintiffs over three and a half years ago “beat” or equalled what Mr. Deliri obtained at the hearing.

[10] Had Mr. Deliri been a plaintiff in the action, rule 49.10(1)(c) would have operated to entitle him to partial indemnity costs up to the date of the offer and substantial indemnity costs from the date of the offer forward. Those costs consequences do not formally apply here because he is a defendant.

[11] Nonetheless, in my view, it is appropriate to exercise my discretion to grant him his costs on a partial indemnity basis prior to the date of the offer, and on a substantial indemnity basis from the date of the offer forward. Rule 49.13 provides that, when I exercise my discretion in awarding costs, I may “take into account any offer to settle made in writing, the date the offer was made and the terms of the offer”. Rule 57.01 echoes this by providing that a written offer to settle is among the factors I may consider when exercising my discretion in assessing costs pursuant to section 131 of the Courts of Justice Act. Mr. Deliri’s offer was a bona fide offer from the successful party that, if accepted, would have saved the parties costs in the future. It is a factor that I may properly take into account when exercising my discretion to fix costs (Oudin v. Le Centre Francophone de Toronto, 2015 ONSC 7622, paras. 4-6, 8).

[12] Mr. Deliri’s costs to the date of the offer, on a partial indemnity scale, are $6,672.00; this amount reflects his firm’s work on the “pleadings phase,” which pre-dated the November 12, 2021 offer. His costs from the date of the offer onward, on a substantial indemnity scale, are $20,997.00; this amount reflects the work done on the “discovery phase,” the “summary judgment phase/continued discovery,” and from January 28, 2025 onward. In total, these costs are $27,669.00. This amount is reasonable in terms of hourly rates and proportionate to the nature of the work done. I grant it.

[13] Mr. Deliri’s disbursements are $2,792.45, including taxes. They are generally reasonable, with the exception of an $1,880.25 disbursement for “online research” that is somewhat inexplicable. It is not clear what online research would result in such a disbursement. The date of the research does not correspond with any docket entries and falls during a period of time when the discovery phase had concluded and work on the summary judgment motion had not yet begun. Counsel for the Plaintiffs asked Mr. Deliri’s counsel about the charge and no explanation was provided. I am not persuaded, in these circumstances, that this disbursement is reasonable and I therefore exclude it, along with its HST. I grant the remaining disbursements of $667.78, inclusive of taxes.

[14] In total, I award Mr. Deliri $28,336.78 in costs, inclusive of HST and disbursements. In my view, this amount is fair and reasonable in all the circumstances. It is to be paid by the Plaintiffs within 30 days.

Rohit Parghi
Date: July 10, 2025