COSTS ENDORSEMENT

COURT FILE NO.: C-686/06
DATE: 2012-05-03
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bryan Taylor, Plaintiff

AND:

Research in Motion Limited, Defendant

BEFORE: The Honourable Mr. Justice M. Dale Parayeski

COUNSEL:
Howard Levitt and Michael Mulroy, Counsel for the Plaintiff

Glenn P. Christie, Counsel for the Defendant

RELEASED: May 3, 2012

COSTS ENDORSEMENT

[ 1 ] This action flows from the wrongful dismissal of the plaintiff by the defendant. The sole outstanding issue is the quantum of partial indemnity costs properly payable by the defendant to the plaintiff. The plaintiff’s bill of costs asks for $455,214.32, all-inclusive. That figure includes a disbursement of $183,977.28 for services rendered by Genbridge. Genbridge, as I understand it, is a corporate entity through which services provided by Randy McLachlan and several of his employees were charged. Mr. McLachlan is the plaintiff’s former financial advisor. He gave evidence as a lay witness at trial and assisted plaintiff counsel with both pre-and post-trial submissions.

[ 2 ] The defendant takes the position that it should be ordered to pay the plaintiff costs at the significantly reduced amount of $192,375.64, plus GST.

[ 3 ] The trial took place over two days in October of 2009. There were written submissions and a further one-half day attendance before me in December of 2011 to address an issue or issues that needed to be dealt with given that my primary ruling did not accord with the final trial submissions of either party.

[ 4 ] There were partial settlements of issues that occurred on the eve of both times of court appearances. While that reduced to a considerable degree courtroom time, it did not manifestly reduce the plaintiff’s need to prepare to address virtually all issues. While resolutions, partial or otherwise, are not to be discouraged, their timing should be carefully considered when costs are being addressed.

[ 5 ] A judge is not an assessment officer, and vice versa . While I have reviewed and appreciate the careful parsing of individual attendances contained in the submissions of counsel, I will not engage in that kind of minutiae . Instead, I shall assess the relevant costs on a broader basis.

[ 6 ] Dealing with fees, I am not prepared to accept the plaintiff’s position with respect to four broad areas, namely initial review and pleadings, attendances at a mediation and at a pre-trial, and trial preparation. The fees sought for those areas alone, in round numbers, are $80,000.00, $6,000.00, $8,000.00, and $100,000.00 respectively. The first and last, in particular, are grossly excessive in light of the essential nature of this action. This is especially so when contemplating the partial indemnity scale. While the plaintiff bargained for, and no doubt got, Rolls Royce-type service throughout, that should not be the responsibility of the defendant, who entered into no such arrangement.

[ 7 ] The attendances at a mediation and at a pre-trial both involved two senior counsel on behalf of the plaintiff. That, too, is excessive.

[ 8 ] Taking all of this into consideration, together with the Rules relating to costs and the case law referred to me by counsel, I assess the plaintiff’s entitlement to fees at $175,000.00, plus appropriate taxes.

[ 9 ] The only disbursement which attracts criticism from the defendant is that of Genbridge mentioned above. Just as I was not prepared to parse the individual attendances of counsel, I will not engage in the same exercise relating to Mr. McLachlan and his employees. Instead, I shall address in broad terms the issues I take with the Genbridge invoices. Those issues lead me to the conclusion that those invoices are not properly assessable at their current level.

[ 10 ] At trial, Mr. McLachlan gave non-expert evidence to the effect that the plaintiff was likely to have sold shares that would have come to him via an option that would have vested within the appropriate notice period according to an equity strategy designed by Mr. McLachlan. For the most part, I rejected that evidence as not being reflective of what the plaintiff probably would have done in the circumstances pertaining to him and his family. While I do not criticize the plaintiff for having called upon Mr. McLachlan to advise his counsel and to give evidence, the fundamental fact that the crucial thrust of his evidence was not accepted ought not to be overlooked.

[ 11 ] Moreover, I do accept the defendant’s submissions that the Genbridge invoices themselves are manifestly incomplete and lacking in material detail. What they do show is that a great deal of time was expended by Genbridge post-trial in advising plaintiff counsel. It is also apparent that this advice changed significantly over the course of time. Again, I do not take issue with the plaintiff’s right to retain Genbridge, but I do not accept the proposition that this is something for which the defendant is responsible.

[ 12 ] This disbursement is excessive to a significant degree. It is vastly beyond what a defendant should reasonably anticipate paying for the services of a lay witness whose primary premise was rejected.

[ 13 ] I assess the plaintiff’s disbursements, for which the defendant must reimburse him, at $50,000.00, plus appropriate taxes. This figure includes the Genbridge disbursement.

The Honourable Mr. Justice M. Dale Parayeski

Date: May 3, 2012