SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-11-438790
Date: 2013-07-08

RE: Forvest Trust S.A. v. The Devine Entertainment Film Library Limited Partnership et al.

Before: Master Glustein

Counsel:
Gregory M. Sidlofsky for the plaintiff

Trent Johnson for the proposed defendants David Woolford and Dr. Ismail Peer

Jeffrey Larry for the proposed defendants David Karas, Alison Tasker (née Bell), Lorne Allen, the Estate of Gabriel Mozer, Colin Webster and Nick Paiva

Heard: June 6, 2013

Costs endorsement

[1] By reasons dated June 13, 2013, I dismissed Forvest’s motion to add the Woolford Group and the Karas Group under Rules 5.04 and 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] I reviewed the costs submissions of the Woolford Group and the Karas Group submitted on or about June 24, 2013 and the responding costs submission of Forvest dated July 4, 2013.

[3] I order costs in the amount of $6,000 in favour of the Karas Group and $4,000 in favour of the Woolford Group, both inclusive of taxes and disbursements, payable by Forvest to each group respectively within 30 days of this order. I review the factors on which I rely below.

[4] The hearing on June 6, 2013 took approximately a half day to argue. The motion was of significant importance to the Proposed Defendants, and raised some complex issues as to privity of contract. These factors would generally support costs in the amount of approximately $7,500 for each party (inclusive of taxes and disbursements), on the basis of the factums, briefs of authorities, and the very slight motion record filed only by the Woolford Group. Such amount would reflect the reasonable costs an unsuccessful party would expect to pay.

[5] However, the Woolford Group caused unnecessary costs to be incurred prior to the initial hearing of the motion on February 11, 2013, by not raising the issue of privity of contract. Instead, the Woolford Group relied on the limitation period issue which was abandoned at the June 6, 2013 hearing on the basis that if there was privity of contract, there would be a tenable cause of action that the ALDA was a demand obligation and as such the limitation period under section 5(3) would not run until demand for payment from the Limited Partner Subscribers. Cross-examination also took place on discoverability issues which were later abandoned.

[6] I do not question the right of the Woolford Group to raise the privity of contract argument after it considered the issues raised by the court at the Initial Hearing and concluded that the argument as to whether there was a demand obligation was tenable and as such Forvest had a tenable argument on the limitation period if there was privity of contract. However, as a result of the unnecessary costs arising from the Woolford Group’s position at the Initial Hearing, I reduce the costs for the Woolford Group to $4,000 inclusive of taxes and disbursements.

[7] With respect to the Karas Group, it did not oppose the motion at the Initial Hearing. Consequently, it as well did not raise the issue of privity of contract until the return of the motion on June 6, 2013. Such conduct contributed to Forvest incurring unnecessary costs at the Initial Hearing, although not to the same extent as the Woolford Group who raised the limitation period and discoverability issues.

[8] Further, the Karas Group filed no responding evidence at the motion, although it made important arguments at the hearing and in its factum on the privity of contract issue. I also take into account the rates sought by counsel for the Karas Group, which are excessive given the years of call of the counsel who participated in the hearing.

[9] For the above reasons, I reduce the costs for the Karas Group to $6,000 inclusive of taxes and disbursements.

[10] I again thank counsel for their concise costs submissions which were of great assistance to the court.

Master Benjamin Glustein

DATE: July 8, 2013