ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 01-CV-18977
Date: 2012/05/30

BETWEEN:

PATRICK DEWAN, DOMICILE DEVELOPMENTS INC., 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC., 117490 CANADA LTD., and SHEILA EBERTS
Plaintiffs/Responding Party

– and –

CLAUDE ALAIN BURDET, IN TRUST
Defendant/Moving Party

Kenneth Radnoff, Q.C., for the Plaintiffs/Responding Party

Jonathan H. Fine and Claude Alain Burdet, for the Defendant/Moving Party

Charlene Kavanagh, for the Administrator

Heard: By Written Submissions

DECISION ON COSTS WITH RESPECT TO DUTIES OF ADMINISTRATOR

kANE j.

[ 1 ] The defendant, C. A. Burdet, in Trust, seeks a costs award in a motion to settle the powers and duties of the interim Administrator of Carleton Condominium Corporation 396. The Administrator opposes any costs award to the defendant on this motion.

[ 2 ] The motion to settle the duties and powers of the Administrator arose as the 2002 order making the interim appointment failed to specify the powers and duties of the Administrator. There were a number of subsequent disputes by the defendant as to what the Administrator had failed to do, did without authority, or did improperly. The Administrator was ultimately ordered to bring a motion to settle its powers and duties.

[ 3 ] Prior to this motion being heard, the court directed the parties to submit a draft order.

[ 4 ] The matter was argued on April 3, 2012. Counsel for the Administrator and the defendant filed factums, authorities and argued the motion. Following argument, the defendant submitted further draft wording of the order sought and reasons in support thereof.

[ 5 ] The plaintiffs neither filed materials on the motion nor attended on argument of the same.

[ 6 ] The court has now issued the order settling the Administrator’s powers and duties.

[ 7 ] The defendant seeks costs of $16,832 and $21,594, inclusive of fees on a partial and full indemnity scale respectively, disbursements and H.S.T. No time docket history was presented beyond global dollar amounts per subjects, such as review of draft order, drafting portions thereof, legal research, and drafting of factum and affidavits.

[ 8 ] The total hours declared by Mr. Burdet as counsel and Mr. Fine as consulting counsel total some 63 hours which is more than anticipated by this court and the Administraror.

[ 9 ] The powers and duties of the interim Administrator are important to all parties, notwithstanding the failure to settle such terms for over nine years.

[ 10 ] The defendant’s argument provided value on the motion to the extent of articulating the issues. That is the case even though most of the defendant’s drafting amendments are not contained in the order as issued.

[ 11 ] Generally, this court did not agree with the defendant’s position that obligations contained in the Condominium Act , such as the obligations of a condominium Board of Directors need not be stated as a duty to be performed by the Administrator. Minimalist wording sometimes lacks necessary clarity and gives rise to disputes.

[ 12 ] A number of the minor drafting alterations suggested by the defendant represent preferred drafting style rather than legal substance.

[ 13 ] The Administrator did not seek to retain its original mandate of “management as it sees fit” and accordingly did not adopt an unreasonable position or extend argument.

[ 14 ] Matters such as errors and impartiality by the Administrator alleged by the defendant were not in issue nor determined on this motion.

[ 15 ] With six years call to the bar, the hourly rate claimed by Mr. Burdet of $450, by way of comparison only, exceeds the rate under the costs grid of $225/hour.

[ 16 ] There are no grounds under rule 57.01 to award costs in excess of partial indemnity.

[ 17 ] The plaintiffs did not take a position or attend on this motion. It is not appropriate to award costs against the plaintiffs. In bringing this motion, the Administrator did what the parties failed to do. Costs should not be awarded against the Administrator. It will likely recover all of its costs from CCC 396.

[ 18 ] The defendant and plaintiffs in this action each allege oppression conduct by the other. If true, that oppression likely necessitated the appointment of an administrator which remains to be determined.

[ 19 ] Based on the above considerations, the defendant shall be entitled to $4,500 in costs of this motion in the cause, inclusive of disbursements and tax. Subject to the outcome of the action, these costs are payable to the defendant by CCC 396.

Kane J.

Released: May 30, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PATRICK DEWAN, DOMICILE DEVELOPMENTS INC., 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC., 117490 CANADA LTD., and SHEILA EBERTS Plaintiffs/Responding Party – and – CLAUDE ALAIN BURDET, IN TRUST Defendant/Moving Party DECISION ON COSTS WITH RESPECT TO DUTIES OF ADMINISTRATOR Kane J.

Released: May 30, 2012