SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-370499
DATE: 20121211

RE: FREEDOM INTERNATIONAL BROKERAGE CO.
Plaintiff

AND:

TULLETT PREBON CANADA LIMITED,
DENIS MARCOTTE and JOHN DOE(S)

Defendants

BEFORE: Mr. Justice Lederer

COUNSEL:
Michael Round , for the Plaintiff

Marc S. Kestenberg & Ilana Schrager , for the Defendant, Tullet Prebon
Canada Limited and Chris Woolcock, Robert Wilson, Mike French and
Steve Periera, Defendants

COSTS ENDORSEMENT

[ 1 ] This costs endorsement arises from a motion that was initially commenced on February 3, 2009. There were several orders that were sought. A consent order was entered into on February 12, 2009, which dealt with some aspects of the matter and adjourned what remained.

[ 2 ] Over the following months and years, the parties continued to battle it out. Over time, many of the matters in dispute were resolved or abandoned. In the meantime, there was at least one cross-examination and refusals, as well as a motion, unsuccessful appeal and a failed motion for leave to appeal directed to resolving those differences.

[ 3 ] When the motion was heard, the only issue left to resolve was whether the Statement of Claim should be amended to allow five individuals to replace the John Doe(s) as defendants in the action.

[ 4 ] Of the five, one agreed to be added, three were added and one was not.

[ 5 ] The plaintiff now seeks its costs of the motion.

[ 6 ] The plaintiff acknowledges that the parties agreed not to include the cost of an abandoned counterclaim or the cost relating to the “allegedly abandoned ‘injunction’”. The plaintiff says it has restricted the time included in the Bill of Costs to work performed in relation to the motion that was “ultimately relied upon in the course of the resolution of the issues that were before [the court]”.

[ 7 ] The plaintiff seeks costs on a partial indemnity scale. The Bill of Costs submitted is for $64,602.84, including fees, disbursements and taxes.

[ 8 ] The defendants have argued that costs should be for a lower amount. They begin by suggesting that success was divided, in that only three of the four proposed defendants, on whose behalf submissions were made, were joined as parties. Accordingly, it is proposed that only three- quarters of the costs should be awarded and that the successful party, the individual who was not joined to the action, should be awarded costs.

[ 9 ] This suggests that the time expended would be equally distributed between the four individuals, 25% to each. This is arbitrary and without any justification. There is little of anything to suggest that the costs would have been remarkably different if the motion had named only three parties. It is important to observe that all four were represented by the same counsel.

[ 10 ] The defendants propose that the costs should be further reduced. It is their view that no payment should be made for anything that was expended prior to April 13, 2012, the date on which Freedom was advised that the individual respondents opposed the motion to add them as parties. This denies the fact that the motion always included a plea to substitute actual names for John Doe(s) and that at least some of the intervening effort was directed to identifying those individuals.

[ 11 ] It appears to be the view of the defendants that everything that went before April 13, 2012 related to the injunctive relief. To me, this is simply not realistic. The issues involved were inextricably bound together. In the circumstances, I accept the statement of counsel for the plaintiff that the costs that the parties agreed should not be considered have been withdrawn from the request being made here.

[ 12 ] The defendants also submit that there should be a reduction on account of delay. They go so far as to suggest that had this motion been brought earlier, they might well not have been opposed. It does seem that there has been too much delay. This should be accounted for in any award of costs.

[ 13 ] The plaintiff seeks $64,602.84, inclusive of fees, disbursements and taxes.

[ 14 ] In the circumstances, I award $54,602.84, inclusive of fees, disbursements and taxes to be paid forthwith by the defendants to the plaintiff.

LEDERER J.

Date: 20121211