Court File and Parties

COURT FILE NO.: 566/04

DATE: 20050202

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: FCMI Financial Corporation and Fez Financial Corporation v. Curtis International Ltd., Jacob Herzog and Aaron Herzog

BEFORE: Then, Ground and Pitt JJ.

COUNSEL: Allan Sternberg and Philip Anisman, for the Appellants/Plaintiffs Raymond M. Slattery and Rachel Moses, for the Defendants/Respondents

C O S T S E N D O R S E M E N T

[1] Counsel for the successful Respondent submits that costs of the appeal should be awarded in the amount of $23,013.02 inclusive of disbursements and G.S.T.

[2] The Appellants submit that the counsel fee is reflective of solicitor client costs rather than partial indemnity costs. Further, if tempered by a consideration of what is reasonable in the circumstances of this case, the Appellants submit that the appropriate amount for costs is $6,731.58.

[3] In our view, the amount claimed for costs by the Respondent on a partial indemnity basis appears high. The issue on this appeal was narrow and straight forward and extensive preparation should not have been necessary for the appeal.

[4] Applying the principles articulated by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario, O.J. No. 2634 which should guide this court in determining what is fair and reasonable, we award costs of the appeal to the Respondents on a partial indemnity basis in the amount of $12,000 all inclusive.

Then J.

Ground J.

Pitt J.

DATE: