Court File and Parties

COURT FILE NO.: 08-CV-43544

DATE: 2013/04/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Allen-Vanguard Corporation v. Richard L’Abbé et al

BEFORE: Master Macleod

COUNSEL:
Eli S. Lederman for Allen Vanguard Corporation

Thomas. G. Conway for the “offeree shareholders”

DECISION ON COSTS

[1] This endorsement deals with costs of the motion by Allen-Vanguard to amend the statement of claim. That motion was granted. The moving party was successful and this gives rise to a presumptive award of costs. On a pleading amendment motion this presumption is frequently displaced by the presumption contained in Rule 26.01. That is the presumption that if there is prejudice to the opposite party which can be remedied in costs such a remedy should be granted.[^1]

[2] One of the terms of the order however was to permit the defendants to make submissions respecting terms which the court might impose as a consequence of the amendments. Terms have been sought and there may yet be further argument on that issue. Consequently these reasons deal only with the costs of the motion as argued and do not preclude the court from making any subsequent costs award in connection with the terms.

[3] I have reviewed the costs outlines and submissions made in writing. Given the time spent on the motion, the complexity of the argument and having regard to the quantum of costs previously ordered in this proceeding, I do not find the costs requested by Allen-Vanguard to be seriously out of line. The request is for partial indemnity costs of $12,227.50 inclusive of fees, disbursements and HST. On the other hand I note that this includes estimated travel costs of $1800.00 and a junior counsel fee for appearing on the motion.

[4] Given the significance of the amendments I have no difficulty with counsel travelling to Ottawa to appear in person but the estimated travel cost of $1800.00 is high and while I have no quarell with the time spent by junior counsel in assisting with preparation this is not a motion in which it is appropriate to require the opposing party to pay costs for such counsel to appear on the motion itself. The argument was ably and effectively argued by Mr. Lederman.[^2]

[5] Consequently in the exercise of my discretion under s. 131 of the Courts of Justice Act applying the relevant factors in Rule 57, I fix the costs of the motion on a partial indemnity scale at $10,000.00.

[6] Those costs need not be paid immediately. Firstly my decision is under appeal and the payment of costs for the motion at first instance should await the outcome of the appeal. An expedited appeal was heard by Justice Hackland on April 22nd and is just now under reserve.

[7] Secondly, as indicated above, and assuming I am not reversed on appeal, it appears there will be further argument directed to the issue of appropriate terms. It is possible there will be a costs award in connection with that issue which could either add to or set off against this award.

[8] In conclusion Allen-Vanguard is entitled to costs of $10,000.00 but this need not be paid until the appeal is disposed of and the outstanding terms are decided should it be necessary to do so.

Master C. MacLeod

Date: April 26th, 2012.

[^1]: See for example Kings Gate Developments Inc. v. Colangelo (1994) 1994 416 (ON CA), 17 O.R. (3d) 841 (C.A.) referred to in my reasons.

[^2]: I am not of course being critical of counsel. Proper mentoring of young counsel ought to include frequent opportunities to appear in court and to observe live argument but the issue here is whether these are costs that should be visited on the opposing party.