SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-12-457816
Date: 2013/08/06

RE: Greta Inc.

Plaintiff

v.

Robert De Lange, Level UP SA and Michael Frank Burgess

Defendants

Before: Moore J.

Counsel:
Thomas J. Dunne, Q.C. and Mark Crane, for the Plaintiff/Respondent

Lawrence A. Pick and Karen L. Dawson, for the Defendant/Applicant, Robert de Lange

ENDORSEMENT

[1] At issue now is the matter of costs awarded to the plaintiff, Greta Inc. (“Greta”). In May of this year, I released an endorsement dismissing the application and awarding costs to Greta in amounts to be agreed upon or fixed by me. The parties did not resolve costs and, therefore, through submissions in writing following the exchange of costs demands as directed, they seek my determination of the matter.

[2] Counsel confirm that costs outlines were exchanged before the motion was argued. As such, the parties were aware that Greta would seek costs of $28,844.43 and the defendant, Robert de Lange (“de Lange”) would seek $19,566.71, each on a partial indemnity basis.

[3] The costs outlines state that counsel for de Lange docketed 68.8 hours in preparation for the motion and counsel for Greta docketed 59 hours.

[4] Greta submits that its responding motion record was substantially more voluminous than the moving party’s record and that Greta prepared and filed a compendium to assist during the oral hearing.

[5] De Lange does not contest Greta’s dockets and allows that the rate charged by Mr. Dunne may be appropriate, given his years of experience, but insists that the rate charged by Mr. Crane is too high.

[6] De Lange requests that costs be ordered payable at the end of the proceeding, to the plaintiff in the cause, fixed in the sum of $15,000.00.

[7] Factors set out in Rule 57 govern the determination of costs on a partial indemnity basis. I have reviewed and considered those factors and, where applicable, the parties submissions upon them.

[8] De Lange submits that the action involves parties and events in multiple jurisdictions and concerns complex jurisdictional questions; I agree. I accept, as well, de Lange’s submission that although the action is one essentially between the parties, the determination of jurisdiction raises questions of international comity.

[9] Counsel with carriage of the application at its hearing are both experienced over several decades in litigation matters; their civility, professionalism and preparedness produced an efficient and cost effective hearing.

[10] Counsel, having been instructed to exchange costs demands before the hearing began, were aware of the financial jeopardy that their clients faced. To some extent, that exchange may have informed the applicant of his reasonable expectations in the event he was called upon to pay costs. De Lange has not, however, provided the court with particulars of such expectations, other than what I might glean from his submission that taking into consideration all of the factors and principles involved, the fair and reasonable disposition of costs in this case would be an amount of about 50% of the amount claimed for partial indemnity costs.

[11] It is trite to say that in fixing costs, a judge is not undertaking a line by line analysis of the bill of costs of the successful party. I accept and have no reason not to that the time spent as detailed in the Greta’s costs materials was both spent and warranted.

[12] It is also trite to say that fixing costs is not an arithmetic exercise of multiplying docketed time by hourly rates; this said however, I am content that the rates charged for time supporting Greta’s claim for costs on a partial indemnity basis are reasonable.

[13] The overriding principle in fixing costs is reasonableness.[^1] So, after considering all relevant factors and having taken a step back to consider the amounts of fee and disbursement items to reflect a fair and reasonable costs award, I fix Greta’s costs at $25,000.00, inclusive of fees disbursements and H.S.T..

[14] Greta also seeks relief from a June 18, 2013 order of the registrar dismissing the action as abandoned. Greta points out that counsel attended before Low J. in February 2013 in connection with motion scheduling and received the May 14 date upon which the motion was argued before me.

[15] My endorsement issued on May 28 and on June 5, counsel for Greta wrote counsel for de Lange requesting delivery of his statement of defence by June 25, 2013.

[16] In my view, there has been no delay in the prosecution of this action and no abandonment of the action warranting the administrative order of the registrar. Counsel has made enquiries and understands that the court is currently booking Masters Motions in December of 2013. It is neither reasonable nor fiscally responsible to require the parties to move before a master in the circumstances. I am content to exercise the discretion vested in me pursuant to rule 37.14(3) and set aside the registrar’s order of June 18, 2013.

[17] In his costs submissions, de Lange requests that the sealing order sought in his motion materials be granted at this time. That issue was not pursued upon the return of the motion. If Greta consents, I will so order but otherwise, de Lange must apply afresh for such relief.

Moore J.

DATE: August 6, 2013

[^1]: Boucher v. Public Accountants Council for Ontario (2004), 2004 14579 (ON CA), 71 OR (3d) 291; 188 OAC 201, at paras. 37 & 38.