Cost ENDORSEMENT

COURT FILE NO.: C-565-07
DATE: 2012-09-12
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gabriele Wolf, Plaintiff

AND:
Peter Anstett and Patrice Butts, Defendants

BEFORE: The Honourable Mr. Justice G. E. Taylor

COUNSEL:
J. Greg Murdoch, Counsel for the Plaintiff
Timothy C. Flannery, Counsel for the Defendants

HEARD: April 30, 2012

Cost ENDORSEMENT

[ 1 ] In a ruling dated May 30, 2012 I made a finding that the incorporation of 1841918 Ontario Inc. was intended to defeat or defraud the plaintiff and to thwart the enforcement of a judgment obtained by the plaintiff against the defendant Peter Anstett. At the conclusion of my written reasons I directed that written submissions be made on the issue of the costs. The plaintiff delivered her written submissions but the defendants have failed to deliver any responding submissions.

[ 2 ] The judgment which the plaintiff is attempting to enforce arose out of monies advanced to Peter Anstett on the basis of false pretences or fraudulent misrepresentation. The substance of my ruling was that Peter Anstett collaborated with his spouse, Patricia Butts, to transfer his income earning capacity to 1841918 Ontario Inc. so as to preclude the plaintiff from garnishing Peter Anstett’s income from Don's Produce and, in effect, transferring that income to Patricia Butts. Without specifically so stating in my ruling, I concluded that the actions of both defendants was for the purpose of, and had the effect of, defeating the legitimate efforts of the plaintiff to satisfy her judgment. I find that the conduct of both defendants was akin to a fraud which was the basis of the original judgment.

[ 3 ] Plaintiff seeks costs of the motion on a substantial indemnity basis. I agree that the plaintiff is entitled to substantial indemnity costs. I also find that the plaintiff is entitled to an award of costs against both Peter Anstett and Patricia Butts.

[ 4 ] The plaintiff requests that she be awarded substantial indemnity costs inclusive of disbursements and HST totalling approximately $29,500. In the absence of submissions from the defendants it is difficult to ascertain the appropriateness of the time spent in relation to the motion. The time spent is definitely significant. I have concern about the hourly rate of $250 for Cynthia Davis based on a 2007 call. The hourly rates of $325 for lead counsel and $150 for a legal clerk with 19 years experience seem appropriate. Disbursements also appear to be in order.

[ 5 ] I therefore fix the costs of this motion on the substantial indemnity basis payable by the defendants Peter Anstett and Patricia Butts to the plaintiff in the amount of $25,000. These costs are payable forthwith.

G. E. Taylor J.

Date: September 12, 2012