Court of Appeal for Ontario

Date: 2004-09-29 Docket: C38611-C38616-C38624

Re: MORRIS WAXMAN and MORRISTON INVESTMENTS LIMITED (Plaintiffs/Respondents) v. CHESTER WAXMAN, CHESTER WAXMAN in trust, CHESTERTON INVESTMENTS LIMITED, ROBERT WAXMAN, GARY WAXMAN, WARREN WAXMAN, I. WAXMAN & SONS LIMITED, THE GREYCLIFFE HOLDINGS LIMITED, ROBIX FINANCIAL CORPORATION LIMITED, CIRCUITAL CANADA INC., RKW STANDARDBRED ASSOCIATES INC., RKW STANDARDBRED MANAGEMENT INC., and GLOW METAL TRADING INC. (Defendants/Appellants)

Before: DOHERTY, LASKIN and GOUDGE JJ.A.

Counsel: Alan Lenczner, Q.C. for Chester Waxman et al. and Wayne Linton Robert S. Harrison for Morris Waxman et al.

ENDORSEMENT

[1] We have considered the written submissions provided by counsel.

[2] Morris was largely successful on the appeal and is entitled to costs. We cannot accept the arguments advanced by Morris for payment on a substantial indemnity basis. The appeal did not involve allegations of fraud against Morris, but submissions concerning the correctness of the trial decision. Nor did the appellants’ attacks on the trial judge’s fact finding process warrant a costs award on the substantial indemnity scale. Morris will have his costs on a partial indemnity basis.

[3] Chester had some minor success on appeal. That success should be reflected by reducing the total costs awarded to Morris by 5 percent.

[4] This is not a case for a premium. Whatever may be said about the financial risk run by counsel who assume carriage of a difficult case at trial, we do not agree that counsel for Morris, who was the respondent in a fact-based appeal, ran a sufficiently significant financial risk at the appellate stage of this action to warrant a premium.

[5] The appellants presented a common front throughout the appeal and we do not see any need to apportion the costs as against individual appellants.

[6] Morris’s costs should be fixed. We cannot adopt the amounts set out in his bill of costs, as it refers to costs on a substantial indemnity scale. We accept the hours and disbursements claimed in the bill of costs. Counsel’s hourly rate should be the same percentage of the maximum available on the partial indemnity scale as the amount claimed in the bill of costs is of the maximum amount available on the substantial indemnity scale.

[7] We assume counsel will be able to come to an agreed figure on the basis of this endorsement. If not, counsel may arrange to speak with Goudge J.A.

“Doherty J.A.”

“J.I. Laskin J.A.”

“S.T. Goudge J.A.”