Ravelston Corporation Limited (Re), 2007 ONCA 272

CITATION: Ravelston Corporation Limited (Re), 2007 ONCA 272

DATE: 20070416

DOCKET: C46649, C46680, M34773

COURT OF APPEAL FOR ONTARIO

DOHERTY, SHARPE and BLAIR JJ.A.

IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF THE RAVELSTON CORPORATION LIMITED AND RAVELSTON MANAGEMENT INC.

AND IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED, AND THE COURTS OF JUSTICE ACT, R.S.O. 1990,, c. C. 43, AS AMENDED

Alex MacFarlane, for RSM Richter Inc., the Receiver

Robyn Ryan Bell, for Sun-Times Media Group Inc.

Matthew P. Gottlieb, for Hollinger Inc. and Domgroup Ltd.

Peter F.C. Howard, for Conrad Black Capital Corporation

David R. Wingfield, for Peter G. White and Peter G. White Management Limited

Heard: February 26, 2007

On appeal from the order of Justice Peter A. Cumming of the Superior Court of Justice dated February 7, 2007, with reasons reported at 2007 2663 (ON SC), [2007] O.J. No. 414 (Q.L.).

COSTS ENDORSEMENT

[1] Following the release of our judgment in this matter on March 1, 2007, counsel made written submissions as to costs. We have now had the opportunity to review those submissions.

[2] Mr. Howard submits, on behalf of Lord Black and his Corporation that the issues on the appeal were novel and complex, involving new or unsettled points of practice or law, and, accordingly, that the Court should exercise its discretion to make no order as to costs in the circumstances. To the extent that we may decide to award costs against Mr. White and his Company, Mr. Wingfield supports these submissions. In the main, however, he argues that Mr. White took a very minor or tertiary role on the appeal and that either no costs should be awarded against his clients or, if any, only a proportionally lower amount reflecting his role.

[3] The respondents contend that the appeal was without merit and that they are entitled to their costs on a partial indemnity basis. The Receiver, Hollinger Inc. and Sun-Times Media Group each claim, respectively, the sums of $41,017.68, $23,464.06 and $8,861.16.

[4] In our view, the appeal raised issues that were neither novel nor complex in a sense that would justify an order depriving the successful parties of costs. It involved a review of the exercise of an experienced Commercial List judge’s oft-exercised discretion whether to approve or not to approve the decision of a receiver made in the ordinary course of the administration of a receivership (he approved the exercise of the discretion). That the cause may have a high public profile and the decision relate to an issue that is somewhat unusual – whether to permit the corporation in receivership to plead guilty in an American criminal trial – do not necessarily make the appeal novel or complex. The respondents are entitled to their costs.

[5] In terms of quantum, we order modified amounts from those claimed by the respondents. There are essentially two reasons for this: first, there is some force in the appellants’ submission that there was a certain identity of interest and overlap between the positions of the respondents; secondly, while we do not doubt that counsel expended the time claimed for preparation , the overall objective of fixing costs is not simply to multiply hours times hourly rates, but “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceedings, rather than an amount fixed by the actual costs incurred by the successful litigant”: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.) at para. 26.

[6] With those principles in mind, we fix the costs – as one set of costs for the leave motion, the motion to quash and the appeal – as follows, all inclusive of fees, disbursements and GST:

For the Receiver $25,000.00

For Hollinger Inc. $12,000.00

For Sun-Times Media $6,500.00

[7] The costs are payable by the appellants, Lord Black and Conrad Black Capital Corporation. We would not order costs against Mr. White or his Company in the circumstances.

“D. Doherty J.A.”

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”