CITATION : Pachino Construction Co. Ltd v. Mizzi, 2017 ONSC 6947 COURT FILE NO.: 07-35417 DATE: 2017-11-21 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Pachino Construction Co. Ltd, plaintiff AND: Enzo Mizzi Bordonaro and Lydia Mizzi, defendants BEFORE: Mr Justice Ramsay COUNSEL: Rocco A. Ruso for the plaintiff Greg Roberts for the defendant ENDORSEMENT [ 1 ] The defendants moved unsuccessfully for

summary judgment ( 2017 ONSC 6430 ). The defendant Enzo Mizzi owes the plaintiff $416,000 on a judgment that was given in 1999. The plaintiff owes the defendants $69,000 costs for another action from 2007. The plaintiff seeks a declaration that it can set off the $69,000 against the $416,000. In refusing

summary judgement I held that this is a genuine issue that requires a trial. [ 2 ] The plaintiff seeks costs of the motion fixed at about $27,000 on partial indemnity or $40,000 on substantial indemnity. The defendant submits that costs should be fixed at $10,000 on a partial indemnity basis and reserved to the trial judge. [ 3 ] The defendant Enzo Mizzi’s position is unattractive: I should be paid what I am owed even if I do not pay what I owe. I think that he is acting unreasonably in insisting on collecting a relatively small amount compared to the enormous debt he has successfully avoided paying.

I also think his materials contained false information from his wife about her involvement in retaining and paying the lawyer on the lawsuit that resulted in the $69,000 order against the plaintiff. To me this all rises to the level of reprehensible conduct and I think substantial indemnity is warranted. [ 4 ] Whatever the result of the trial, the defendants were unsuccessful in preventing the plaintiff from proceeding.

I think that the plaintiff should have his costs of the motion in any event and that they should be payable now. [ 5 ] I fix costs of the motion at $40,000 and order the defendants to pay them within 30 days. J.A. Ramsay J. Date: 2017-11-21