DIVISIONAL COURT FILE NO.: 150/03
COURT FILE NO.: 01-CV-210071CM
DATE: 20030616
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Alltricor Financial Management Inc., Laurentian Trust of Canada Inc., in trust for RRSP No. 8206103, T.D. Trust Company, trustee for: (1) the self directed retirement income fund no. 149134T and 138141T (2) the self directed retirement savings plan no. 657643S and no. 149255S; and Romar Group Inc. (Plaintiffs) v. Nu-Port Homes Inc., John Pugliese, 1461089 Ontario Ltd., Roland Paskar, 1455730 Ontario Ltd., Lakshman Doobay and Heritage Baypark Ltd. (Defendants)
BEFORE: O’Driscoll J.
E N D O R S E M E N T - C O S T S
[1] The last paragraph [para. 16] of my endorsement, dated March 25, 2003, stated that if counsel were unable to agree as to costs, they were to file written submissions.
[2] Counsel for the Respondents/Plaintiffs filed a seven (7) page submission regarding costs, a Bill of Costs, correspondence between counsel and copies of the relevant Rules of Civil Procedure and case law.
[3] Counsel for the Applicants/Defendants countered with a seven (7) page memorandum regarding costs.
[4] The Respondents/Plaintiffs seek costs on a substantial indemnity basis in the amount of $22,163.98 for fees, $748.54 for disbursements which amounts include G.S.T. Counsel for the Respondents/Plaintiffs seeks their costs on a full indemnity basis because:
(i) it is alleged that the motion for leave to appeal was without merit and
(ii) was completely unreasonable and unfounded in that the Respondents/Plaintiffs had offered to settle the matter on the same basis that Brennan J. had made his order and
(iii) the matter was of some complexity and was of importance to the parties.
[5] Counsel for the Applicants/Defendants countered and submitted that the Respondents/Plaintiffs should have nothing beyond their costs on a partial indemnity basis. It is the position of the Applicants/Defendants that any offers to settle were withdrawn by the Respondents/Plaintiffs shortly after the date of Brennan J.’s order and no offer to settle was extant at the time the motion for leave to appeal was launched.
[6] Although the Applicants/Defendants did not challenge Brennan J.’s findings that the Respondents/Plaintiffs had established a prima facie case under the Fraudulent Conveyances Act against the Defendants, it must be remembered that the motion before me was not unduly complex and was interlocutory in nature.
[7] At paragraph [21] of his memorandum, counsel for the Applicants/Defendants states:
- These defendants repeat their submission that costs ought to be fixed, and fixed on a partial indemnity basis. Given the factors mentioned above, it is respectfully submitted that partial indemnity costs in the range of $3,500 - $5,000 are appropriate for this motion.
[8] I agree. That fee range reflects the everyday range in the Divisional Court on an application for leave to appeal under rule 62.02(1) and (4) of the Rules of Civil Procedure.
[9] Costs are fixed on a partial indemnity basis:
(1) Fees at $5,000.00
(2) Disbursements which would be allowed on an assessment of a bill of costs
(3) G.S.T.
O’Driscoll J.
DATE: June 16, 2003