ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 03-CV-257901CM3
DATE: 20120326

BETWEEN:
1427814 ONTARIO LIMITED (Plaintiff)

AND :
3697584 CANADA INC., RÉNO-DÉPÔT INC. and KINGFISHER FRANCE SAS (Defendants)

BEFORE:
M.A. SANDERSON J.

COUNSEL:
Mr Maurice Neirinck, Mr Michael McQuade for the Plaintiff

Mr Ken Prehogan, Ms Hilary Book for the Defendants

E N D O R S E M E N T re C O S T S and I N T E R E S T

Costs

[ 1 ] Counsel have agreed on a number of matters relating to costs:

(a) The Plaintiff is entitled to costs on a partial indemnity scale to September 30, 2010 and on a substantial indemnity scale thereafter;

(b) The Defendants do not take issue generally with the number of hours spent by Plaintiff's counsel;

(c) The partial indemnity rates up to the date of the mediation of $350 per hour for Mr. Neirinck (a 1975 call) and $250 per hour for Mr. McQuade (a 1995 call) are acceptable.

[ 2 ] They disagree on the partial indemnity rate after the mediation of $375 per hour the Plaintiff claims for Mr. Neirinck and $350 per hour for Mr. McQuade. Counsel for the Defendants submitted that the $350 per hour rate should be used for Mr. Neirinck and $250 per hour rate should be used for Mr. McQuade until September 30, 2010.

[ 3 ] The Plaintiff claims substantial indemnity rates of $500 per hour for Mr. Neirinck and $450 per hour for Mr. McQuade on the basis they are entitled to substantial indemnity, not full indemnity. The Defendants propose $450 per hour for Mr. Neirinck and $350 per hour for Mr. McQuade.

[ 4 ] I note that in the Defendants' Costs Outline dated October 15, 2010, calculated on a partial indemnity basis to the start of the trial, and on the assumption that the trial would take one week, counsel for the Defendants estimated total fees of $357,731.81 with Mr. Prehogan's (a 1976 call) partial indemnity fees calculated at $350.00 per hour for work done in 2008, and at $300 per hour for Sue Metcalfe, (a 1992 call).

[ 5 ] In my view, the partial indemnity rate to be used for Mr. Neirinck between the mediation and September 30, 2010 is $350 per hour (x 45 hours) and $300 per hour (x 23.7 hours) for Mr. McQuade.

[ 6 ] Under Rule 1.03, substantial indemnity costs mean costs awarded in an amount that is 1.5 times what would otherwise be awarded for partial indemnity costs.

[ 7 ] On that basis, a substantial indemnity rate of $500 per hour for Mr. Neirinck and $350 per hour for Mr. McQuade cannot be said to be unreasonable.

[ 8 ] I accept that the 7.4 hours claimed for an attendance before Master Glustein on October 26, 2010 should be deducted from hours claimed by Mr. McQuade.

[ 9 ] Fees should be calculated on that basis.. GST was chargeable at 7% until July 1, 2006, 6% from July 1, 2006 to January 1, 2008, and 5% from January 1, 2008 to July 1, 2010. If counsel cannot agree on the calculation, or the final costs numbers, a conference call to discuss further submissions may be arranged.

[ 10 ] Taxable disbursements total $71,480.49 plus HST of $9170. Given the amounts set out in the Defendants' Bill of Costs at Tab J of the Plaintiff's submissions, the amount claimed by the Plaintiff for costs cannot be said to be outside the reasonable expectation of the Defendants.

[ 11 ] If, following these guidelines, disbursements cannot be agreed upon, counsel may arrange a conference call to discuss the matter further.

Interest

[ 12 ] In all of the circumstances, I am of the view that pre-judgment interest on the $3.5 million judgment should be calculated from August 27, 2003 at a rate of 3.3% (the bank rate at the end of the first day of the last month of the quarter preceding the quarter in which the proceeding was commenced as defined in s. 127(1) of the Courts of Justice Act .)

[ 13 ] It appears that pre-judgment interest at 3.3% is [as calculated by the Defendants] $966,402.72, but if the Plaintiff should disagree with that calculation, arrangements to make further submissions on that calculation may be made.

M.A. SANDERSON J.

Released: