Court File and Parties

COURT FILE NO.: 169/03 DATE: 2004-03-08

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Nora Isabel Bartlett on behalf of herself and other Creditors, Plaintiff/Respondent - and - Michael J. Hordo, Rhaetia Investments S.A., Rhaetia Investments Inc., Midi Phi Holding Corporation and Ephraim P. Fiksel, Defendants/Appellants

BEFORE: Mr. Justice Ferrier

COUNSEL: Raj Anand for the respondents Bohdan Bodnaruk, Pellegrino Capone and Bodnaruk & Capone Michael J. Hordo in person and as counsel for the Corporate Defendants Hugh Pattison for the respondent/plaintiff Patrick Eichenberg for the respondents Gowling Strathy Henderson and Edward Belobabba J.D. Marshall for the respondents Geoffrey Cowper, Tracey Cohen and Fasken Martineau LLP

HEARD: March 4, 2004

Endorsement

[1] It is readily apparent from a reading of the endorsement of Master Kelly that he carefully and fully dealt with a “myriad of items of relief” claimed by the defendants in their motion before him. The reasons of Master Kelly are detailed and complete. He carefully reviewed and summarized the issues. He correctly applied the law and exercised his discretion in accordance with correct legal principles.

[2] An appeal of this nature is a determination of the correctness of the decision of the Master. In my view he was correct, in his reasoning, the exercise of his discretion and in the orders he made.

[3] For these reasons the appeal is dismissed.

[4] As to costs, the responding parties shall have costs.

[5] The moving party filed an appeal book of five volumes of material comprising 786 pages. Most of this material was irrelevant to the issues in the appeal.

[6] The notice of appeal is so prolix and unnecessarily complex as to make it nearly incomprehensible in the context of the appeal.

[7] The defendants filed a prolix, extraordinarily long factum for this appeal, including many references to law that have no application in this appeal.

[8] Furthermore, the unnecessarily complex and prolix factum raised issues not only irrelevant to the appeal, but many of which had been decided against the defendants and which were not in issue in the appeal. (For example, the issue of bias in Master Kelly).

[9] The appeal was so lacking in merit, it was not necessary to call on any of the responding parties.

[10] The defendant Hordo is a solicitor, acting in person and for the corporate defendants. Whether the voluminous, prolix, unnecessarily complex and in most respects irrelevant material has been delivered by Mr. Hordo as a deliberate attempt to obfuscate and delay, or whether it is filed as a result of sheer incompetence, no litigant should have to bear any expense of such an unnecessary onslaught. Each counsel had to pore through 786 pages of detailed material, plus a lengthy factum as above described, in order to defend against this appeal.

[11] This is a case for substantial indemnity costs.

[12] The plaintiff sought costs on that scale. I have reviewed the details of the plaintiff’s claim (Bill of Costs) and find it to be reasonable. I fix the counsel fee for the argument at $2,500. Thus I fix the plaintiff’s costs, including disbursements, at $8,500 plus G.S.T.

[13] Counsel for the Fasken respondents seeks partial indemnity costs of $7,250 including disbursements, plus G.S.T. That figure is based on an hourly rate of $350 (more than 20 years at the bar), ten hours preparation, including preparing factum, three hours of preparation for argument and counsel fees on appeal of $1,500. I fix the Fasken respondents’ costs at $6,750 plus G.S.T.

[14] Counsel for Kacaba claims $4,250 for half-day counsel fees, plus ten hours at $225 per hour (year of call 2003). I fix those costs at $3,500.

[15] Counsel for the Gowling respondents seeks $1,500 counsel fees on the motion, $500 counsel fees for the aborted day on March 1, 2004, and $2,000 preparation, totalling $4,000 (2002 call to the bar). I fix those costs at $3,500.

[16] Counsel for the Bodnaruk & Capone respondents seeks costs on a substantial indemnity basis in the amount of $5,000, including disbursements, plus G.S.T., being $1,500 for the motion for the adjournment and other relief, and $6,500 for the appeal (call to the bar 1980). This claim is reasonable and I fix those costs at $8,000 plus G.S.T.

[17] All defendants are jointly and severally liable for the above costs.

Ferrier J.

DATE: March 8, 2004

cc