COURT FILE NO.: 1461

DATE: October 28, 2005

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LEE BROTHERS LIMITED, AL KATZMAN and 851277 ONTARIO LTD. (Claimants/Appellant) -and- THE CORPORATION OF THE CITY OF WINDSOR (Respondent)

BEFORE: Associate Chief Justice J.D. Cunningham, Justice C. McKinnon, Justice A.W. Bryant

COUNSEL: Myron W. Shulgan, for the claimants/appellant Stephen F. Waqué and Gabrielle Kramer, for the respondent

ENDORSEMENT

[1] The City of Windsor, the respondent, was successful on the appeal and is entitled to its reasonable costs. The respondent requests costs on a partial indemnity basis in the amount of $70, 987 plus GST and $4,315 for disbursements plus GST and PST.

[2] Counsel for the respondent submits that the matter in issue, namely the claim for business loss, was a large monetary claim ($3.0 million). The respondent further submits that counsel was required to review the complete transcript (2,816 pages) and expert reports because the appellant’s factum did not delineate the basis for the relief claimed and the appeal was fact driven.

[3] Lee Brothers Limited et al, the unsuccessful appellant, submitted that the rates claimed were excessive, the attendance of two counsel to argue the appeal was unnecessary and there were improper disbursements. The appellant submits that the costs should be fixed in the amount of $56, 000 inclusive of disbursements and GST.

[4] The appellant submits that the partial indemnity rates were excessive and should be something less than the amount charged to the client. Even though the hourly rate charged was less than the fees that were charged to the client and the rates fell within the cost grid then in place, the total fees claimed were large for a one-day appeal. We accept the appellant’s submission that it was not necessary for two counsel to attend on the appeal - the issue argued by the second counsel was a very straight-forward legal issue. Most of the claim for legal research is not compensable because the appeal raised a single legal issue that had been decided by the court of appeal.

[5] The review of the transcript could have been delegated to an articling student or a lawyer of recent call. We find it was unnecessary to minutely review the entire transcript. The 200 hours claimed for the primary lawyer was excessive.

[6] Schedule A does not recognize costs for electronic searches and the photocopy and binding costs are reduced.

[7] We grant costs in the amount of $55,000 inclusive of disbursements and GST.

BRYANT, J.

CUNNINGHAM, ACJ

McKINNON, J.

DATE: October 28, 2005