Case reference: DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601 (CanLII)
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
[1] In my Reasons for Decision dated May 27, 2010 in DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 3104, I dismissed the claim of the plaintiff (“Duca”) that a January 29, 1988 trust declaration executed by the defendant Albert Bozzo was a sham and void or alternatively, was void because of the Fraudulent Conveyances Act. Written submissions as to costs have been received.
[2] The defendants seek costs on a full indemnity basis of $550,363.33 including disbursements and GST, or alternatively costs on a substantial indemnity basis of $394,488.73.
[3] The defendants submit they made two offers to settle that were refused. The defendants also submit that Duca’s claim that the trust declaration in issue was fraudulent was dismissed as unfounded and is therefore deserving of an award of costs in favour of the defendants on a full indemnity or, at least, substantial indemnity scale.
[4] The plaintiff submits that costs in favour of the defendants be denied, or alternatively be deferred to the trial judge who hears the counterclaim or alternatively limited to $50,000, inclusive of fees, disbursements and GST.
General Principles as to Costs
[5] Costs are in the discretion of the Court: s. 131, Courts of Justice Act, R.S.O. 1990, c. C.43 and Rule 57.01 of the Rules of Civil Procedure. In Ontario, the normative approach is first, that costs follow the event, premised upon a two-way, or loser pay, costs approach; second, that costs are awarded on a partial indemnity basis; and third, that costs are payable forthwith, i.e. within 30 days. Discretion can, of course, be exercised in exceptional circumstances to depart from any one or more of these norms.
[6] Rule 57.01 (1) lists a broad range of factors for the court to consider, including the result achieved in the proceeding, the complexity of the proceeding, the importance of the issues and whether any step in the proceeding was improper, vexatious or unnecessary.
[7] In exercising its discretion, a court must produce a result that is fair and reasonable in all the circumstances: Boucher v. Public Accountants Council (Ontario), (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[8] The principles to be applied in the exercising of discretion in fixing costs are authoritatively set forth in Andersen v. St. Jude Medical, Inc., 2006 CanLII 85158 (ON SCDC), [2006] O.J. No. 508 (Div. Ct.), 264 D.L.R.(4th) 557, 145 A.C.W.S. (3d) 786.
[9] Rule 49 may be operative in impacting upon the award of costs in light of any offer to settle.
[10] Finally, where a plaintiff advances unfounded allegations of fraud and dishonesty a court is justified in exercising its discretion to depart from the normative award of costs on a partial indemnity basis and award costs on a full or substantial indemnity basis. Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9 (CanLII), [2004] 1S.C.R. 303 (S.C.C.) at para. 26.
*source: Canlii
