COURT FILE NO.: 439/05
DATE: By Written Submissions
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, SWINTON AND LINHARES DE SOUSA JJ.
B E T W E E N:
THE UNITED STATES OF AMERICA and UNITED STATES FEDERAL TRADE COMMISSION
Malcolm Ruby and Duncan C. Boswell, for the Appellants
Appellants
- and -
GEORGE MICHAEL YEMEC, ANITA FERN RAPP, STEVEN LAWRENCE RAPP, PAUL CHURCHILL TESKEY, JEAN-PAUL C. TESKEY, JULIA F. BUNGARO, WILLIAM DEAN TEMPLE, JR., YVONNE BUCKINGHAM, FLORENCE MARY TESKEY, WORLD MEDIA BROKERS INC., 1165107 ONTARIO INC., FABY GAMES INC., 624654 ONTARIO LIMITED, 637736 ONTARIO LIMITED, 537721 ONTARIO INC., EXPRESS MARKETING SERVICES LTD., 364058 B.C. LTD., 331216 B.C. LTD., INTERMARKETING SERVICES INC., CASH & PRICES, INC., TARAS VOLOSHCHUK (A.K.A. TERRY WOLOSCHUK), CANADIAN SUBSCRIPTION SERVICES, 1306051 ONTARIO INC., 377414 ONTARIO INC., O/A WORLD MEDIA BROKERS, DIAL-A-MILLION INC., TELEGROUP INC., O/A MARKET MONITOR, 747321 ONTARIO INC., GRAND PRINT INC., JACKPOTS & PRIZES, NELSON BUNTING, 599026 ONTARIO INC. and EXPRESS PURCHASE SERVICES LTD.
David E. Wires and T. Cheung, for George Michael Yemec and
H. James Morin, for Julia F. Bungaro
Respondents
DECISION ON COSTS
Linhares de Sousa J.
[1] We have now had the opportunity of considering the written submissions on costs of all counsel in this matter. We have determined that the Appellants should receive their costs as follows and for the following reasons.
[2] Costs are in the discretion of this Court and guided by the principles enunciated in Rule 57.01 of the Rules of Civil Procedure. The Court is directed to consider “the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer” as well as “the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed.”
[3] With respect to the quantum of the Appellants’ bill of costs, except as discussed below, we have no issue with the overall hours and rates claimed by the Appellants. The complexity of the proceedings and the importance of the issues raised in this case also support this conclusion. Furthermore, it is supported when one considers the quantum of costs claimed by the Yemec Respondents in their written submissions.
[4] Regarding the consideration of success in this matter, there is no question that the Appellants were successful in obtaining an overall notable reduction in the costs award against both Respondents. This was success on a major issue before the Court relating to the motion judge’s proper Boucher analysis to the bill of costs in question. Nonetheless there were multiple issues before the Court which also occupied the Court’s time and about which one can only conclude that there was some measure of divided success. The Appellants were also successful on the leave motion and on the question of the interest date. On the other hand they did not succeed on the question of substantial indemnity, the question of whether costs should be paid in the cause and the question of fresh evidence. Consequently, in light of this divided success this Court concludes that there should be some discounting of the bill of costs to reflect this divided success.
[5] We therefore fix the Appellants’ costs as follows:
(a) For the leave application they are entitled to $10,000.00. While the overall bill of costs for the leave application was reasonable, we conclude that there was some excess in the number of lawyers used to present that motion.
(b) For the balance of the motion the Appellants are entitled $25,000.00 to reflect the divided success including their lack of success on the fresh evidence motion.
[6] This amounts to a total costs award of $35,000.00, which in our view, in the overall consideration of the nature of this proceeding, is an amount that reasonably compensates the Appellants for their costs and that an unsuccessful party could reasonably expect to pay in the circumstances of this case.
[7] In view of the uneven levels of liability and participation as between the different Respondents we are not convinced that awarding costs jointly and severally would do justice to the parties. We note as well that the costs awards of the Respondents were reduced by different proportions. We therefore order that the Yemec Respondents be liable to pay two-thirds of the costs award ($23,333.00) and that the Bungaro Respondents be liable to pay one-third of the costs award ($11,667.00).
Linhares de Sousa J.
Chapnik J.
Swinton J.
Released: August 20, 2007
COURT FILE NO.: 439/05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
THE UNITED STATES OF AMERICA and UNITED STATES FEDERAL TRADE COMMISSION
Appellants
- and –
GEORGE MICHAEL YEMEC et al
Respondents
DECISION ON COSTS
Released: August 20, 2007