COURT FILE NO.: 422/03

DATE: 20050927

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, DAY AND CAMERON JJ.

B E T W E E N:

JEFFREY STREISFIELD and LILLIAN STREISFIELD (personally and in her capacity as Estate Administrator of the Estate of GERALD STREISFIELD, deceased)

Plaintiffs/Respondents

• and -

JEAN KARNOVSKY, MARVIN GOODMAN, CAROL GOODMAN, SHAUN GOODMAN, TARA ABRAMS (nee Goodman), JOYCE LAWEE, DAVID LAWEE, MARK K. LAWEE, ROBERT A. WATSON, RONALD CARR, GOODMAN & CARR, BARRISTERS & SOLICITORS, DERMOTT C.G. MOORE and LEONARD WEINSTEIN (in his capacity as estate trustee during litigation of the Estate of the late Dora Herberman) and LINDA WATSON

Defendants/Appellants

ENDORSEMENT AS TO COSTS

1On May 28, 2004, C. Campbell J. granted the Appellants/Defendants (excluding D.C.G. Moore and Leonard Weinstein) leave to appeal to the Divisional Court under s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 and rule 62.02(4) of the Rules of Civil Procedure from the orders of Matlow J., dated June 27, 2003 and March 1, 2004. Matlow J. had dismissed the Appellants’/Defendants’ motion to:

(a) dismiss the action under rule 21.01(3), and

(b) to strike out the Statement of Claim under rule 21.01(b).

2In the court’s unanimous endorsement of June 17, 2005, Day J. said:

[2] The plaintiffs [in an earlier action where the now plaintiffs were the defendants] were found by Carnwath J. to have been engaged in a scheme, in breach of their fiduciary duty to Dora Herberman, to obtain her assets and money in the trial of an action conducted on the estate list (the “Prior Action”). The plaintiffs appealed from the decision of Carnwath J. All appeals have been struck or dismissed. Leave to appeal to the Supreme Court of Canada has been denied.

[14] The application of res judicata is not restricted to those points argued and decided, but it also applies to all points that could have been raised. Since the plaintiffs’ Statement of Claim [in this action] attempts to re-litigate their trial loss and attempts to complain about grounds that were or could have been raised earlier, it should be struck as an abuse of process. This is particularly so in light of the decision of the Court of Appeal of 14 May 2004 in which it upheld the finding of Carnwath J. in the Prior Action, that both Jeffrey Streisfield and Lillian Streisfield knowingly assisted in Gerald and Craig Streisfield’s breach of fiduciary duty to Dora Herberman.

[15] The appellants request that the orders of Matlow J. be set aside is hereby granted. The plaintiffs’ Statement of Claim is hereby struck out without leave to amend and the action is dismissed with costs. If the parties are unable to come to terms as to costs, we will entertain written submissions on costs within 20 days.

3The parties could not agree on costs.

4On July 26, 2005, counsel for the Appellants/Defendants filed a five (5) page draft Bill of Costs on a Partial Indemnity Scale. The draft bill set out the work done by all those who worked on the file and the rates claimed by each.

5The draft bill totals:

(a) Fees $35,855.00

(b) G.S.T. on fees $ 2,404.85

(c) Non taxable disbursements $ 1,549.43

(d) Taxable disbursements $ 2,330.26

(e) G.S.T. on disbursements $ 163.12

$42,302.66

6Mr. T.P. Bates was called to the Bar in 1976 and charged an hourly rate of $275.00.

7On August 14, 2005, Jeffrey E. Streisfield submitted a three (3) page “Costs Submission”. He submits that “the amount claimed is excessive. A fair amount for the appeal and previous attendance…is in the range of $12,000.00 to $14,000.00 all inclusive”.

8This action was not a simple claim based on a N.S.F. cheque. It involved allegations of fraud, conspiracy, dishonesty and malice on the part of the Appellants/Defendants.

9After reviewing the draft Bill of Costs and the submissions filed, it is my conclusion that there is no reason to reduce or disallow the amounts claimed in the draft Bill of Costs, filed July 26, 2005.

10Costs of the action and the appeal are fixed at $42,302.66, all inclusive, payable within thirty (30) days of the date of the release of this endorsement, by the Respondents/Plaintiffs to the Appellants/Defendants.

O’Driscoll J.

Day J.

Cameron J.