Court File and Parties

COURT FILE NO.: 775/03 777/03

Toronto

DATE: 20051213

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KITSON VINCENT (Appellant) – and – FREDDY AND WENDY DEGASPERIS (Respondents)

AND BETWEEN: THE ROSEDALE GOLF ASSOCIATION LIMITED (Appellant) – and – FREDDY DEGASPERIS JR. AND WENDY DEGASPERIS (Respondents)

AND BETWEEN: ONTARIO MUNICIPAL BOARD (Intervenor) – and – CITY OF TORONTO (Intervenor)

BEFORE: JUSTICES MATLOW, JARVIS, MOLLOY

COUNSEL: N. Jane Pepino, for the Appellant, Kitson Vincent A. Brown and L. Richetti, for the Respondents, Freddy and Wendy DeGasperis Chris Paliare, for the Appellant, The Rosedale Golf Club Association Limited M. Michaels, for the Intervenor, Ontario Municipal Board Andrew Weretelnyk, for the Intervenor, City of Toronto

DATE HEARD: In writing

ENDORSEMENT RE COSTS

[1] The appellants were successful on the appeal and are entitled to their costs. It is not appropriate to reduce those costs because not every argument advanced on the appeal was successful, as suggested by the respondent. The issues brought forward were reasonable and did not unduly lengthen the proceeding to the point that a costs penalty should be imposed.

[2] There is nothing about this case to warrant departing from the usual rule of fixing costs with reference to the partial indemnity scale.

[3] We are all of the view that the disbursements should be allowed as claimed. We were initially concerned about the amount claimed by the appellant, Kitson Vincent, for disbursements, as it seemed inordinately high and was also significantly higher than the disbursements claimed by the other appellant, Rosedale Golf Association. The main difference between the two was the photocopying expense incurred by counsel in the Vincent appeal. We are satisfied by the explanation provided by counsel to our inquiry about this issue. Counsel in the Vincent appeal took the lead on preparing the materials for the Court, which involved extensive photocopying. Also, many of the documents were large drawings and diagrams with colour, the copying of which was more costly. Accordingly, we are satisfied that the disbursements as claimed are reasonable.

[4] With respect to the awards for fees, we are guided by the decision of the Court of Appeal in Boucher v Public Accountants Council (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). Costs are not determined merely by the time spent and hourly rate applied. Rather, it is necessary to make an award that is fair and reasonable and within the limits of the reasonable expectations of the parties.

[5] We are all of the view that the amounts claimed for fees by the appellants in both appeals are outside the limits of what is reasonable and must be reduced.

[6] With respect to the Vincent Kitson appeal, we do not doubt that the time claimed was spent. Nor do we have any difficulty with the hourly rates claimed. However, we do note that there is some duplication caused by the number of lawyers working on the file and the amount of preparation time claimed for junior counsel seems excessive. We have not awarded anything by way of fees for the intervenor motion, as we do not see that as an expense to be borne by the respondents. The total claimed for fees for the leave to appeal motion is in excess of $14,000, which is far beyond what is reasonable for this type of motion. The total claimed for fees for the appeal itself is approximately $12,000, which is closer to what is a reasonable fee for an appeal that took one day to argue. In our opinion, the appropriate award for fees, for both the leave application and appeal combined is $15,000.00 inclusive of GST, plus disbursements of $15,177.34 as claimed, payable by the respondents within one month of today’s date.

[7] With respect to the Rosedale Golf Association Limited appeal our primary concerns are the overlapping of counsel and resulting time duplication and the general principles of reasonableness referred to in Boucher. We are all of the view that The Rosedale Golf Association Limited is entitled to the costs of this appeal and of the leave application fixed at $15,000 inclusive of GST, plus disbursements of $4121.68 payable by the respondents within one month of today’s date.

MATLOW J.

JARVIS J.

MOLLOY J.

Released: December 13, 2005