ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO .: 12-CV-00463750
DATE : November 26, 2012

IN THE MATTER OF an intended Application to appoint an arbitrator pursuant to the Arbitration Act 1991

AND IN THE MATTER OF an agreement effective February 1, 2007 between David Diamond & James Diamond, carrying on business as Diamond & Diamond (of the first part) , and Kurt Bergmanis and Alan Preyra, carrying on business as Bergmanis Preyra LLP (of the second part)

BETWEEN:

KURT BERGMANIS, ALAN PREYRA and BERGMANIS PREYRA LLP Applicants – and – DAVID DIAMOND, JAMES DIAMOND and DIAMOND & DIAMOND Respondents

Alan L. Rachlin , for the Applicants

Linda R. Rothstein and Kris Borg-Olivier , for Jeremy Diamond and Alex Ragozzino

HEARD: In writing

PERELL, J.

REASONS FOR DECISION – COSTS

[ 1 ] The Applicants are Kurt Bergmanis, Alay Preyra, and Bermanis Preyra LLP.

[ 2 ] Jeremy Diamond and Alex Ragozzino, who are not parties to this proceeding, successfully moved to have an Anton Piller Order that was granted to the Applicants set aside. My reasons for judgment are reported as Bergmanis v. Diamond & Diamond , 2012 ONSC 5762

[ 3 ] Messrs. Diamond and Ragozzino now seek costs. They say that they incurred costs of $65,711.07, and they seek substantial indemnity costs of $45,132.87 or partial indemnity costs of $28,901. They submit that the costs claimed are reasonable in the circumstances of this case.

[ 4 ] The Applicants submit, however, that a fair and reasonable award would be partial indemnity costs in the sum of $20,000.00, inclusive of HST plus the claimed disbursements.

[ 5 ] In particular response to the submissions of Messrs. Diamond and Ragozzino, the Applicants submit that there was no misconduct that would warrant an award of costs on a substantial indemnity basis. They submit that the non-parties’ lawyers overworked and over-resourced the file and treated it as an urgent matter when there was no real urgency. They also submit that the substantial indemnity hourly rates are excessively high.

[ 6 ] I agree that this is not a case for substantial indemnity costs. In deciding to set aside the Anton Pillar Order, I declined to decide whether the order should be set aside on the basis that the Applicants’ conduct or the conduct of their lawyer in the obtaining of an ex parte order had been inappropriate and deserving of censure. I am not going to revisit that decision as an aspect of awarding costs.

[ 7 ] As I viewed the matter, and as I continue to view the matter, the Applicants did not intentionally or otherwise mislead Justice Wilson to obtain an ex parte Anton Pillar Order. Rather, a contested and fully argued motion revealed that the Applicants misunderstood and underestimated the extraordinary nature of this very intrusive order and were unable to persuade the court that the Order should be granted.

[ 8 ] I did not perceive the Applicants or their lawyer obstructing the hearing of the non-parties’ motion to have the ex parte order set aside. What I perceived were the lawyers for both parties attempting to vigorously advance the position of their clients in a firm and fair way.

[ 9 ] I have no doubt that the non-parties were properly eager and anxious to have the Anton Pillar order set aside and to have their property restored to them and that their lawyers acted accordingly, but I do not find this circumstance sufficient to award substantial indemnity costs.

[ 10 ] The non-parties were the successful party and, in my opinion, they should receive costs in the normal way on a partial indemnity basis and in light to the normal factors that guide the court in the exercise of its discretion.

[ 11 ] Having regard to those factors, I award Messrs. Diamond and Ragozzino costs of $25,500 all inclusive.

[ 12 ] Order accordingly.

Perell, J.

Released: November 26, 2012

COURT FILE NO. : 12-CV-00463750
DATE : November 26, 2012

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

KURT BERGMANIS, ALAN PREYRA and BERGMANIS PREYRA LLP

Applicants

‑ and ‑

DAVID DIAMOND, JAMES DIAMOND and DIAMOND & DIAMOND

Respondents

REASONS FOR DECISION - COSTS

Perell, J.

Released: November 26, 2012