Court of Appeal for Ontario
Date: 2023-08-08 Docket: C70208, C70209 & C70228
Judges: Miller, Coroza and Copeland JJ.A.
Docket: C70208
BETWEEN
The Catalyst Capital Group Inc. and Callidus Capital Corporation Plaintiffs
and
West Face Capital Inc., Gregory Boland, M5V Advisors Inc., c.o.b. Anson Group Canada, Admiralty Advisors LLC, Frigate Ventures LP, Anson Investments LP, Anson Capital LP, Anson Investments Master Fund LP, AIMF GP, Anson Catalyst Master Fund LP, ACF GP, Moez Kassam, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Bruce Langstaff, Rob Copeland, Kevin Baumann, Jeffrey McFarlane, Darryl Levitt, Richard Molyneux, Gerald Duhamel, George Wesley Voorheis, Bruce Livesey and John Does #4-10 Defendants
AND BETWEEN
West Face Capital Inc. and Gregory Boland Plaintiffs by Counterclaim (Respondents)
and
The Catalyst Capital Group Inc. and Callidus Capital Corporation, Newton Glassman, Gabriel De Alba, James Riley, Virginia Jamieson, Emmanuel Rosen, B.C. Strategy Ltd. d/b/a Black Cube, B.C. Strategy UK LTD. d/b/a Black Cube, and PSY Group Inc. Defendants by Counterclaim (Appellants)
Docket: C70209
AND BETWEEN
The Catalyst Capital Group Inc. and Callidus Capital Corporation Plaintiffs (Appellants)
and
Dow Jones and Company, Rob Copeland, Jacquie McNish and Jeffrey McFarlane Defendants (Respondents)
Docket: C70228
AND BETWEEN
The Catalyst Capital Group Inc. and Callidus Capital Corporation Plaintiffs (Appellants)
and
West Face Capital Inc., Gregory Boland, M5V Advisors Inc., c.o.b. Anson Group Canada, Admiralty Advisors LLC, Frigate Ventures LP, Anson Investments LP, Anson Capital LP, Anson Investments Master Fund LP, AIMF GP, Anson Catalyst Master Fund LP, ACF GP, Moez Kassam, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Bruce Langstaff, Rob Copeland, Kevin Baumann, Jeffrey McFarlane, Darryl Levitt, Richard Molyneux, Gerald Duhamel, George Wesley Voorheis, Bruce Livesey and John Does #4-10 Defendants (Respondents)
Counsel
- John E. Callaghan, Richard G. Dearden, Benjamin Na, Matthew Karabus, and Marco S. Romeo, for the appellants (C70208, C70209 and C70228), Catalyst Capital Group Inc. and Callidus Capital Corporation
- David Moore and Ken Jones, for the appellants (C70208, C70209 and C70228), Catalyst Capital Group Inc., Callidus Capital Corporation, Newton Glassman, Gabriel De Alba, and James Riley
- Matthew Milne-Smith, Andrew Carlson, and Maura O’Sullivan, for the respondents (C70208 and C70228), West Face Capital Inc. and Gregory Boland
- M. Philip Tunley, for the respondents, Dow Jones and Company and Jacquie McNish (C70209) and Rob Copeland (C70209 and C70228)
- Lucas Lung and Rebecca Shoom, for respondents (C70228), ClaritySpring Inc. and Nathan Anderson
- Eugene Bodnar and Breanne Campbell, for the respondent (C70228), Kevin Baumann
- Mark Wiffen, for the respondents, Jeffrey McFarlane (C70209 and C70228) and Darryl Levitt (C70228)
- A. Dimitri Lascaris, Paul Guy, and Ashley Seely, for the respondent (C70228), Bruce Livesey
Heard: October 18-19, 2022
On appeal from the orders of Justice Thomas J. McEwen of the Superior Court of Justice, dated December 2, 2021.
Costs Endorsement
1On release of this court’s reasons in which the appellants’ appeals and cross-appeal were dismissed, we invited written submissions on costs of the appeals.
2We were advised that the appellants had reached an agreement with the respondent Bruce Livesey to pay his costs in respect of the appeal of the dismissal of the Wolfpack action in the amount of $65,000, all inclusive. Costs are accordingly ordered payable to Mr. Livesey on that basis.
3With respect to the remaining respondents, the appellants propose an aggregate payment of $300,000 as partial indemnity costs to be divided among the remaining respondents as they see fit.
4The respondents West Face Capital Inc. and Gregory Boland (together, “West Face”) seek costs of the appeals on a full indemnity basis in the amount of $455,476.60, all inclusive. West Face’s costs calculated on a partial indemnity basis are $273,488.97.
5The respondent Kevin Baumann seeks costs on a partial indemnity basis in the amount of $30,077.03, all inclusive.
6The respondents Darryl Levitt and Jeffrey McFarlane seek costs on a partial indemnity basis in the amount of $44,380.75, all inclusive.
7The respondents ClaritySpring Inc. and Nathan Anderson seek costs on a partial indemnity basis in the amount of $45,143.95, all inclusive.
8The respondents Dow Jones and Company, Rob Copeland, and Jacquie McNish (the “Dow Jones defendants”) seek partial indemnity costs in the amount of $90,992.03, all inclusive.
9As this court noted in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 853, at para. 1, the presumptions in s. 137.1(7) and (8) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, do not apply to appeals. Costs of the appeals are therefore to be determined by the conduct of the appeals. The appeals were comprehensive, wide-ranging and hard fought. Because of the scope of the appeals and the amounts at stake, the appellants accept that the costs award will be considerable. But there was nothing in the appellants’ conduct of the appeals that would warrant an order of costs on an elevated basis.
10With respect to quantum, then, the appellants do not take issue directly with the bills of costs submitted by the respondents. The claim that the costs sought is excessive is based solely on costs awards in other appeals that the appellants argue are comparable. There are of course limits to the utility of such comparisons.
11We are persuaded to the contrary that the amounts sought by the various respondents are reasonable and proportionate. There was evident cooperation among counsel, with little or no duplication of effort. West Face took the lead in the Wolfpack action and had the most at stake. It is appropriate that the costs it seeks would be significantly higher than the other respondents. Similarly, the costs of the Dow Jones defendants were significantly higher than those of the other parties to the defamation action, as they carried a greater burden in that litigation.
Disposition
12Accordingly, the respondents are awarded their costs of the appeals in the following amounts on a partial indemnity basis, all inclusive:
- The West Face parties - $273,488.97;
- Bruce Livesey - $65,000;
- Kevin Baumann - $30,077.03;
- Darryl Levitt and Jeffrey McFarlane - $44,380.75;
- ClaritySpring Inc. and Nathan Anderson - $45,143.95;
- The Dow Jones defendants - $90,992.03.
“B.W. Miller J.A.” “S. Coroza J.A.” “J. Copeland J.A.”