ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-438276
DATE: 20121207

BETWEEN:

PETER A. DAVIDSON Applicant (Moving Party) – and – GERTRUDE BARNHARDT and TAURUS FINANCIAL ADVISORS LTD Respondent (Respondents)

Justin G. Necpal, for the Applicant

Kristian Borg-Olivier, for the Respondents

J.S. O’NEILL

RULING ON COSTS

[ 1 ] Following the release of my reasons on October 23, 2012, I reviewed costs submissions from the parties dated November 9 and 19, 2012.

[ 2 ] S. 131 of the Courts of Justice Act provides that “subject to the Rules of Court, the costs of and incidental to a proceeding or a step in the proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.”

[ 3 ] Rule 57 of the Rules of Civil Procedure sets forth the factors to be considered by the court in exercising its discretion under s. 131 of the Courts of Justice Act, placing emphasis on the result in the proceeding and any written offer to settle. Effective July 1, 2005, the costs grid with respect to this rule was revoked given a number of Court of Appeal decisions critical of Bills of Costs and awards that were mathematical applications of the grids hourly rates to hours expended. It was replaced by reliance upon the discretionary factors set out in Rule 57.01(1) now supplemented by reference to the principle of indemnity, (including the experience of the lawyers, the rates charged and the hours spent by the lawyer) and the amount of costs that an unsuccessful party could reasonably expect to pay.

[ 4 ] Having reviewed my original reasons, as well as the costs submissions of the parties, I make the following points:

i. My costs award on the partial indemnity basis is only in relation to the motion which I heard in Toronto, not in relation to any other motions or proceedings.

ii. I accept that one of the important factors or principles to be considered in exercising my costs discretion is the amount of costs that an unsuccessful party could reasonably expect to pay. As stated by the Applicant in his submissions “as the Court of Appeal has held, the objective in dealing with costs is to fix an amount of costs of costs that is fair and reasonable, rather than an amount fixed by actual costs incurred by the successful litigant, or by the simple application of hours times rates.”

[ 5 ] With these principles and points in mind, I would reduce the amount claimed by the Applicant for costs along the following lines:

i. Delete claim for preparing for and attending examination of Gertrude Barnhardt on September 7, 2012 - $2161.13.

ii. Delete claim regarding preparing materials for contempt motion and attending motions scheduling court - $2517.08.

[ 6 ] These deletions reduce the amount claimed for partial indemnity fees, disbursements and HST from $15,872.45 to $11,194.24.

[ 7 ] But in my view, I believe that an award of partial indemnity costs should also be somewhat reduced from this figure. In this regard, I note:

i. The Respondent’s bill of costs totals $6180 for fees only, for a suggested partial indemnity rate. Add HST $803.40. Add disbursements and HST $831.01. Respondent’s suggested Bill of Costs $7814.41.

[ 8 ] In the exercise of my costs discretion having regard to the legal principles as well as the submissions of the parties, and my ruling and reasons herein, I would fix the partial indemnity costs of the Applicant, inclusive of fees, disbursements and HST, in the sum of $10,000, calculated as follows –

Respondent’s suggested partial indemnity fees 6180.00

Add HST 803.40

Add disbursements and HST 831.01

Respondents suggested bull of costs 7814.41

Applicant’s reduced bill of costs 11,194.24

Average of each parties bill of costs 9504.33.

[ 9 ] I would round this figure to 10,000 and order that the sum of $10,000 be fixed in total for partial indemnity costs (inclusive of HST and disbursements). This sum is to be paid forthwith by the Respondent Gertrude Barnhardt to the Applicant Peter A. Davidson.

[ 10 ] Order Accordingly.

J.S. ONEILL

Released: December 7, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PETER A. DAVIDSON Applicant (Moving Party) – and – GERTRUDE BARNHARDT and TAURUS FINANCIAL ADVISORS LTD Respondent (Respondents) RULING ON COSTS Justice J.S. O’Neill

Released: December 7, 2012