DIVISIONAL COURT FILE NO.: 327/03

DATE: 20040719

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TREATS INC.

Plaintiff/Applicant

• and -

RICHTER, USHER AND VINEBERG, CHARTERED ACCOUNTANTS, and LESLIE RUPF, ELIZABETH VOLGYESI, ROBERT M. KERR, FRANK ZAID, SUSAN OKUN and ROBERT CROSBIE

Defendants/Respondents

Endorsement as to costs

[1] On May 30, 2003, Treats Inc. (Treats) brought an application for leave to appeal under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and Rule 62.02(1) and (4)(b) of the Rules of Civil Procedure, seeking leave to appeal to the Divisional Court from the March 27, 2003 order of Pepall J., who dismissed Treats’ appeal from the February 6, 2003 order of Master Haberman, who ordered that Treats post $680,000 to secure Mr. Zaid’s possible award of costs.

[2] On June 16, 2003, for written reasons, leave to appeal was refused.

[3] Counsel, being unable to agree as to costs, filed written submissions in accordance with my written reasons (paragraph [14]).

[4] Counsel for Zaid sought costs, on a substantial indemnity basis, in the sum of $24,965.95, from Pepall J. On March 26, 2004, Pepall J. awarded Mr. Zaid costs, on a partial indemnity basis, in the sum of $18,037.00 plus G.S.T. and disbursements of $372.02 inclusive of G.S.T.

[5] Counsel for Zaid seeks costs on the application for leave to appeal on a substantial indemnity basis in the amount of $18,788.66 plus disbursements of $157.84 plus G.S.T. The amount includes 38.3 hours of preparation totalling $11,173.00.

[6] Nothing in the material persuades me that Mr. Zaid is entitled to an order for substantial indemnity costs on the application for leave to appeal. In my view, the amount claimed is excessive on any scale.

[7] In view of all the circumstances, the costs of Frank Zaid on the application for leave to appeal are payable forthwith by Treats to Frank Zaid in the amount of $5,000.00 fees (all inclusive) plus disbursements of $157.84 plus G.S.T.

O’Driscoll J.

Released: