SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO: CV-90-46926
DATE: 20121017

RE: BNP Paribas (Canada)

Plaintiff/Responding Party

• and -

Donald S. Bartlett Investments Limited, Donald Sinclair Bartlett, Lilly Malene Bartlett, Margaret Bartlett, Inger Anne Bartlett , Brenda Bartlett and Donald Bartlett, Jr.

Defendant/Moving Party

BEFORE: The Honourable Mr. Justice Robert F. Goldstein

COUNSEL:
Junior Sirivar & Lisa M. Filgiano,
for the Plaintiff

Ian C. Wallace,
for the Defendant/Moving Party

HEARD : Written submissions

E N D O R S E M E N T

AS TO COSTS

[ 1 ] On August 8, 2012 I heard the Plaintiff’s motion to amend the Statement of Claim. On September 20, 2012 I dismissed the motion, and invited the parties to make submissions as to costs.

[ 2 ] Plaintiff’s counsel seeks $14,420.17 inclusive of fees, disbursements, and HST payable forthwith. This amount represents costs on a partial indemnity basis for two counsel to prepare the material, be present at a cross-examination, and conduct the motion itself. Defendant’s counsel argues that the amount is excessive given that it was a simple motion and did not require two counsel.

[ 3 ] Costs are within the discretion of the Court: Courts of Justice Act , s. 131(1). Rule 57.01(1) sets out the factors that the Court may consider in awarding costs. The over-arching principle is that the Court should fix an amount that is fair and reasonable: Boucher v. Public Accountants Council for Ontario , 2004 14579 (Ont.C.A.), 71 O.R. (3d) 291, [2004] O.J. No. 2643 (C.A.). A successful party is entitled to costs unless there are very good reasons not to award such costs: Schreiber v. Mulroney , 2007 31754 (ON SC) , [2007] O.J. No. 3191 (Sup.Ct.) at para. 2 .

[ 4 ] In my view, given the complexity of the matter and the experience of counsel, the partial indemnity amount of $14,420.17 is reasonable under the circumstances. The motion required the marshalling of material that had accumulated over the lifespan of a 22-year action, a significant and complex task. Given the importance of the motion to both parties, it was reasonable for the Defendant to assume that the Plaintiff would take the steps necessary to defend the motion. I accept the Plaintiff’s point that the Defendant’s cross-examination of a law clerk who simply filed an affidavit in order to put material before the court was unnecessary.

[ 5 ] The amount of $14,420.17 is awarded to the Plaintiff. I accept the Defendant’s request that he be given 120 days to pay.

GOLDSTEIN, J.

DATE: October 17, 2012