Court File and Parties

COURT FILE NO.: 553/03

DATE: 20060120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Before: lane, jennings and molloy JJ.

B E T W E E N:

ROYAL & SUNALLIANCE INSURANCE COMPANY OF CANADA Applicant

• and -

ROMAN VOLFSON, OLGA SHUSTER, YURI SHUSTER AND THE FINANCIAL SERVICES COMMISSION OF ONTARIO Respondents

Counsel: Michael Hucklack, for the Applicant Robert Ipacs, for the Respondent Volfson Robert Conway for the Respondent Financial Services Commission of Ontario

COSTS ENDORSEMENT

Jennings J.:

[1] In our reasons for judgment released October 24, 2005, we invited cost submissions from the applicant and the respondent Volfson, no costs being asked by the Financial Services Commission of Ontario, and the Shusters not participating in the application for judicial review. We have now had the advantage of written submissions.

[2] In both the submissions there is agreement that the issues in the judicial review application were technical in nature and involved issues of unsettled law.

[3] The parties further agree that the applicant should be awarded costs on a partial indemnity basis.

[4] The applicant seeks costs in the amount of $8,593.17 inclusive of GST, and $2,203.49 for disbursements inclusive of GST, for a total of $10,796.66. Counsel for Mr. Volfson submits the fee should be in the range of $3,000 to $5,000, and that the disbursements are "vague and also excessive". No particular support for those allegations was submitted to us.

[5] The conduct of Mr. Volfson, fully set out in the decision of the Arbitrator and referred to in the decision of the Director's Delegate was in our opinion such that an award of solicitor and client costs might have been appropriate. That being said, the argument before us appears to have been substantially the same as the argument submitted on the appeal to the Director's Delegate, which ought to have resulted in some economies in preparation time.

[6] Taking those factors into account, and considering the reasonable expectation of the parties as to the costs to be incurred in an application of this sort to this court (see, Boucher v. Public Accountant's Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.)) in our opinion an award for fees of $7,000 inclusive of GST would be appropriate.

[7] We see no reason to interfere with the sum claimed for disbursements.

[8] In the result, the respondent Volfson is to pay costs to the applicant in the sum of $9,203.49 inclusive of disbursements and GST.

Lane J.

Jennings J.

Molloy J.

Released: