DATE: 20021104 DOCKET: C36919

COURT OF APPEAL FOR ONTARIO

RE: IN THE MATTER OF ANVIL RANGE MINING CORPORATION; AND IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. c-36, AS AMENDED AND IN THE MATTER OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. C-43, AS AMENDED; AND IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED; AND IN THE MATTER OF THE PLAN OF COMPROMISE OR ARRANGEMENT OF ANVIL RANGE MINING CORPORATION

BEFORE: MORDEN, BORINS and FELDMAN JJ.A.

COUNSEL: Kevin R. Aalto for the appellants George Karayannides for the respondent Deloitte & Touche Inc. Interim Receiver of Anvil Range Mining Corporation and Anvil Mining Properties Inc. David Hager for the respondent Cominco Ltd. Maureen H. Bellmore for the respondent Yukon Energy Corporation

HEARD: By way of written submissions filed

E N D O R S E M E N T

[1] [1] The court has received written submissions respecting the fixing of costs provided for in our reasons dated July 5, 2002. The costs are to be fixed on the partial indemnity scale. We set forth below our determination of the issues to be resolved.

[1] [2] The appellant, before making submissions on the fixing of costs, submitted that the court should, in effect, change the disposition of costs provided for in its reasons of July 5, 2002 to provide that there be no costs of the appeal. The court gave consideration to this issue before releasing its reasons and it is not persuaded that it should change its disposition in this regard. The court, however, through oversight, neglected to include in the costs disposition a statement that the costs include the costs of the motion for leave to appeal. These were reserved to the court by the panel granting leave. The order should be treated as including these costs in the disposition. If a formal order is required in this regard, this should be brought to the attention of the court.

[2] [3] We deal first with the costs claimed by the Interim Receiver. The costs sought by this respondent with respect to the motion for leave to appeal are $16,422, which include $13,422 for the fees. (We note that the disbursements claimed total $3,682.80, not the $2,068.80 in the bill. This has resulted in an understatement of the total claim by some $1600.00.) The issues were not unduly complex and, undoubtedly, there was written material before Farley J., which could, in some significant measure, be adapted for use on this motion. Having regard to the nature of the motion, we think that the fee claimed is excessive. We fix it at $6,500 plus disbursements at $3,682.80 and G.S.T. on the applicable fees and disbursements.

[3] [4] The Interim Receiver claims a total of $40,227.47 for the costs of the appeal. This includes $34,054 for fees. There can be no objection to the counsel fee portion of the total claim of $2,000 but, once again, having regard to the nature and complexity of the issues, we think that the amount of the fee claimed for preparation is excessive. We fix the total fee claimed respecting the appeal at $25,000 to which we add the disbursements claimed at $3,540.43 and add G.S.T. on the applicable fees and disbursements.

[4] [5] Cominco Ltd. claims a total costs of $19,588.82. This includes a fee of $2,135 for telephone motion before Morden J.A. on February 27, 2002 on a motion by the appellant to have the hearing of the appeal adjourned. The motion was dismissed but no order was made respecting costs. Accordingly, Cominco Ltd. is not entitled to this part of the fee.

[5] [6] With respect to the fees relating to the appeal, we think that the total claim is excessive. The burden of responding to the appeal was shared with the Interim Receiver and a greater part of this burden was borne by the Interim Receiver. In light of this, we fix the fee relating to the appeal at $10,000 to which we add the disbursements claimed of $343.75 and G.S.T. on the applicable fees and disbursements.

[6] [7] The Yukon Energy Corporation has submitted a bill for fees in the amount of $9,986.00, which together with disbursements and G.S.T., totals $10,710.91. We note that this bill includes no separate item for the fee respecting the hearing of the appeal but, it appears, this fee appears to be part of that claimed for preparation, specifically seven hours at $350 an hour. The total amount, $2,450, exceeds a maximum fee allowable under the costs grid of $2,000. Apart from this, there does not appear to be anything exceptionable in this claim. Accordingly, we fix the total fee at $9,536.00 to which we add disbursements of $24.20 and G.S.T. on applicable fees and disbursements.

“J.W. Morden J.A.”

“S. Borins J.A.”

“K. Feldman J.A.”