SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-335287PD1
DATE: 20121213

RE: ALEXANDRE VAN DAMME
Applicant

AND:

NAHUM GELBER and GASIUNASEN
GALLERY OF PALM BEACH, INC.
Respondents

BEFORE: Mr. Justice Lederer

COUNSEL:
Jeff Galway , for the Applicant (Moving Party)
Ian Godfrey & Ryan Treleaven , for Nahum Gelber, Respondent

COSTS ENDORSEMENT

[ 1 ] In this proceeding, the applicant (Van Damme) sought to enforce a judgment he had obtained in the state of New York.

[ 2 ] The respondent (Gelber) had appealed that judgment and brought other proceedings in an effort to have the court in New York re-consider the principal issue that had been raised. Was the individual and gallery that had apparently sold a painting on behalf of Gelber authorized as his agent for that purpose?

[ 3 ] The painting was being held in Toronto pursuant to an order of this Court. The applicant sought to enforce the New York judgment through an amendment to the order by which the painting was being maintained here.

[ 4 ] At the time the application was argued, there was an appeal that remained extant in New York. The process of the court in New York required that this appeal be perfected by October 25, 2102.

[ 5 ] The application determined that the New York judgment could be enforced in Ontario, but imposed a stay on that enforcement pending a determination of the outstanding appeal.

[ 6 ] Van Damme seeks costs on a substantial indemnity scale in the amount of $104,298.28, inclusive of fees, disbursements and taxes (HST).

[ 7 ] The claim for costs at the elevated scale is based on the proposition that the actions of Gelber, attempting to re-litigate the matter, were “reprehensible, scandalous or outrageous”. There may be some hyperbole in these words, but the decision makes clear that the response to the motion was a continuation of the efforts of Gelber to delay accepting the decision of the court that the painting had been sold. The concern is that Gelber proceeded with his various appeals, not in a good faith effort to resolve the matter but, rather, to impede its resolution (see: Van Damme v. Gelber , 2012 ONSC 6277 () at para. 34 ) . This will be confirmed if the outstanding appeal, in New York, is dismissed. The response by Gelber to the motion to amend the Ontario order was another attempt, by Gelber, to extend a game he had already lost ( see: Van Damme v. Gelber , supra, at para. 40 ) . The judgment notes that:

…every action taken by Gelber since the determination granting summary judgment to Van Damme has been directed to setting aside the finding that Gasiunasen was his agent. In this motion, there are four separate arguments all directed to that one point: no standing, no jurisdiction, an offence to natural justice and public policy as well as the proposal for the new defence.

[Emphasis added]

( Van Damme v. Gelber , supra , at para. 66 )

[ 8 ] Near its end, the judgment observes:

Viewed in this context, it becomes apparent that the position taken on this motion to enforce the judgment of the court in New York is the sixth attempt brought on behalf of Gelber to re-open the matter and contest the finding that Gasiunasen was his authorized agent. There is a point where the courts are being misused by constant and continuing efforts to keep a proceeding open instead of accepting the determination that has been made and moving on. The court is not a hockey rink and its proceedings are not a game. This is not a place to rag the puck. Ultimately, the court has to protect its own process.

( Van Damme v. Gelber , supra , at para. 68 )

[ 9 ] There is little to stop a party from using the courts in this way, but it should not expect to do so with impunity. In these circumstances, I award costs on a substantial indemnity scale.

[ 10 ] The respondent submitted that the hours suggested are too high and the reliance on three relatively senior counsel (a 1988 call, a 1987 call and a 2002 call) was not something the respondent could reasonably have expected to pay for. Taking into account these submissions and its view that costs should be awarded on a partial indemnity scale, the respondent suggests that an award of costs of $54,120.91, inclusive of fees, disbursements and taxes (HST) is appropriate.

[ 11 ] I agree with counsel for the respondent that sixty hours dedicated to the preparation for oral argument, in addition to preparing motion materials, research and drafting facta, is high. Nonetheless, given what was at stake for Van Damme, as well as the complexity and variety of arguments made, I am not prepared to find that they are so unreasonable that Gelber should not have foreseen that his approach to the motion could attract the costs these hours represent.

[ 12 ] It may be that, even in these circumstances, asking the respondent to pay the costs of the involvement of three counsel, the least experienced of which was called to the bar ten years ago, is too much to ask. The total costs associated with the time of the most junior of the three lawyers, on a substantial indemnity scale was $7,661.25. On account of the reliance on three relatively senior counsel, I reduce the costs requested by $10,000.

[ 13 ] I order costs to be paid by Gelber to Van Damme in the amount of $94,298.28, inclusive of fees, disbursements and taxes (HST).

LEDERER J.

Date: 20121213