Citation and Court Information

CITATION: 1413910 Ontario Inc. v. McCarthy Tetrault LLP, 2015 ONSC 5917

DIVISIONAL COURT FILE NO.: 160/15 DATE: 20150923

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

R.S.J. MORAWETZ, KRUZICK AND SACHS JJ.

BETWEEN:

1413910 ONTARIO INC. Applicant (Appellant)

– and –

McCARTHY TETRAULT LLP Respondent (Respondent in Appeal)

COUNSEL:

William L. Roland, for the Applicant (Appellant)

Anu Koshal, Respondent (Respondent in Appeal)

HEARD at Toronto: September 23, 2015

Oral Reasons for Judgment

SACHS J. (ORALLY)

[1] This is an appeal from the order of Newbould J. dated February 24, 2015 in which he varied two aspects of the assessment officer’s report.

[2] The first aspect of the motion judge’s decision that the appellant challenges, is the motion judge’s conclusion that the assessment officer reduced hourly rates without giving any reasons for doing so. The appellant submits that, contrary to the findings of the motion judge, the assessment officer gave extensive reasons as to why he reduced these hourly rates and that those reasons are set out throughout his lengthy judgment. With respect, we disagree.

[3] The assessment officer’s reasons and consequent reductions are structured into two broad separate parts. In the first part he deals with any reduction that should be made due to unreasonable hourly rates. In the second he deals with any reductions that should be made for other reasons.

[4] The assessment officer reached his conclusion regarding the reasonableness of the hourly rates and the reductions that should consequently be made in relation to those hourly rates at para. 70. Reading paragraph 70 in the context of the reasons as a whole, we agree with the motion judge that the assessment officer gave nothing other than conclusory reasons for his finding that the hourly rates charged by the respondent were unreasonable.

[5] The appellant also appeals the motion judge’s finding that the assessment officer had no reasonable basis for disallowing the cost of two lawyers to appear in court. According to the assessment officer, “it was beyond the reasonable contemplation or expectation of the client to pay ‘double-time’ for such duplication.” Again, we agree with the motion judge that there was no basis for the assessment officer to make this finding since the assessment officer acknowledged that he did not hear any evidence from Mr. Dimakos as to what his expectations were regarding the cost of the litigation.

[6] The only evidence the assessment officer had on this point was Mr. Dimakos’ acknowledgment in cross-examination that his previous lawyer had often appeared in tandem at court proceedings. This evidence runs contrary to the finding of the assessment officer.

[7] For these reasons we would dismiss the appeal. During his submissions, the respondent’s counsel raised for the first time the fact that there was apparently a mathematical error in the motion judge’s decision of $6,400. He asked us to vary the motion judge’s order accordingly. While we accept that we may have jurisdiction to make this variation, we decline to do so when the request has been made so late in the day.

[8] As per the agreement of counsel, the appellant shall pay the respondent its costs of this appeal fixed in the amount of $8,000, all inclusive.

___________________________ SACHS J.

MORAWETZ R.S.J.

KRUZICK J.

Date of Reasons for Judgment: September 23, 2015

Date of Release: September 28, 2015

CITATION: 1413910 Ontario Inc. v. McCarthy Tetrault LLP, 2015 ONSC 5917

DIVISIONAL COURT FILE NO.: 160/15 DATE: 20150923

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.S.J. MORAWETZ, KRUZICK AND SACHS JJ.

BETWEEN:

1413910 ONTARIO INC. Applicant (Appellant)

– and –

McCARTHY TETRAULT LLP Respondent (Respondent in Appeal)

ORAL REASONS FOR JUDGMENT

SACHS J.

Date of Reasons for Judgment: September 23, 2015

Date of Release: September 28, 2015