COURT OF APPEAL FOR ONTARIO
MacFarland J.A. (In Chambers)
BETWEEN
Canadian International Petroleum Corp. and Ghareeb Awad
Applicants (Moving Party)
and
Dover Investments Limited and Robert Salna
Respondents (Respondents)
Dr. Ghareeb Awad, acting on behalf of the Corporation (CIPC)
Howard Wolch, for the respondent
Heard: Via Teleconference – September 12, 2016
COSTS ENDORSEMENT
1The respondents seek costs of this motion to extend time in the total sum of $29,821.96 on a substantial indemnity basis and $19,024.62 on a partial indemnity basis. In relation to the substantial indemnity claim, I note of the $27,827.85 claimed $14,206.50 represent fees charged by Mr. Maltz and are described in his costs outline as “Actual Rate” which I take to mean full indemnity. That said, this motion was argued not by Mr. Maltz who has been the respondents’ long time counsel in relation to these issues. The motion was argued of necessity by Mr. Wolch because in August 2016, the moving party commenced proceedings against Mr. Maltz. The amounts sought herein accordingly are in combination then of the two firms – that of Mr. Maltz and of Mr. Wolch.
2A certain amount of time was necessarily required by Mr. Wolch to familiarize himself with the voluminous materials that were filed on this motion – some four substantial volumes. Ordinarily a party against whom costs are awarded would not be expected to pay any portion of the costs in relation to a change of counsel. Where, however, that change of counsel is necessitated, as here, by the actions of that party in commencing an action against his opponent’s counsel – different considerations apply.
3That said, in my view, a total claim of about sixty hours from senior counsel to this motion is excessive. The rates for substantial indemnity costs also differ – Mr. Maltz’s rate for “actual rate” which in the absence of any evidence to the contrary, I take to mean full indemnity – is $385 per hour and Mr. Wolch’s $495. The $385 rate must be reduced to reflect the substantial indemnity rate.
4It seems to me to be fair to the moving party who was unsuccessful on this motion – there must be some adjustment in the rate and the hours spent. I would award costs on a substantial – not full – indemnity basis. In my view, the motion was an abuse of the process of the court.
5In fixing costs the court does not engage in a detailed review of the bills submitted but rather fixes an amount that is reasonable. As this court noted in Boucher et al v. Public Accountants Council for the Province of Ontario et al. (2004) 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291:
... the costs award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs to the successful litigant.
6In my view, in all the circumstances the sum of $20,000 inclusive of disbursements and HST is a fair and reasonable sum.
7Costs to the responding party fixed in the sum of $20,000 inclusive of disbursements and HST.
“J. MacFarland J.A.”