SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-367521

DATE: 20130808

RE: CANACCORD CAPITAL CORPORATION, Plaintiff

AND:

ZENON JUNKO, Defendant

AND BETWEEN:

ZENON JUNKO, Plaintiff by Counterclaim

AND:

CANACCORD CAPITAL CORPORATION and DAVID TOLES, Defendants by Counterclaim

BEFORE: R. F. Goldstein J.

COUNSEL:
Helen Daley, for the Plaintiff/Defendant by Counterclaim, Canaccord Capital Corporation

Jeffrey Larry, for the Defendant by Counterclaim, David Toles

Zenon Junko, in person

HEARD: October 29 – November 5, 2012

COSTS ENDORSEMENT

[1] On December 11, 2012 I dismissed a counterclaim brought by Zenon Junko against Canaccord and Toles: Junko v. Canaccord Capital Inc., 2012 ONSC 6966, [2012] O.J. No. 5868, 113 O.R. (3d) 579. I invited the parties to make costs submissions. Ms. Daley, counsel for Canaccord, and Mr. Larry, counsel for Mr. Toles, have each filed a costs outline. Mr. Junko has made no submissions on costs despite being given more than one opportunity to do so.

[2] Ms. Daley submits a costs outline seeking $19,789.12 on a partial indemnity basis. Mr. Larry submits a costs outline seeking $19,323.35, also on a partial indemnity basis.

[3] The over-arching principle in awarding costs is that the award must be fair and reasonable in the circumstances: Boucher v. Public Accountants Council for Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2643, 71 O.R. (3d) 291 (C.A.).

[4] The usual practice is that costs should follow the event. In other words, “loser pays”. The loser-pays practice is designed to impose discipline on litigants. Parties know that if they lose, they will pay. “Loser pays” provides a disincentive to bring proceedings that have little merit. In this case, there is no reason to depart from the loser-pays principle, especially where Mr. Junko’s counterclaim was so clearly devoid of merit.

[5] In my view, the amounts requested in the costs outlines of Canaccord and Mr. Toles are very reasonable given a five-day trial. In particular, I point to the following:

Complexity: The matter was not particularly complex. Resolution of the case required making a credibility judgment. There was considerable documentation, and much of that documentation consisted of emails corroborating the version of events of the Defendants by Counterclaim.

The amount claimed: In her costs outline, Ms. Daley indicated that she spent 46.7 hours for preparation and court attendance. Mr. Larry indicated that he spent 60.5 hours for preparation and court. The difference likely exists because Ms. Daley is a very senior and experienced lawyer, and Mr. Larry is more junior. I find that these amounts are very reasonable and even minimal given the practice of downtown Toronto litigation firms.

Whether any step in the proceeding was improper, vexatious, or unnecessary: It should also be noted that time was wasted by Mr. Junko during the course of the trial. He was granted adjournments to gather documents. He did not use the adjournments as had been intended and the blamed, unfairly, Ms. Daley. At least one full day and part of another day of trial were wasted, and costs driven up, because of these fruitless adjournments.

DISPOSITION:

[6] The amount of $19,789.12 is awarded to Canaccord, representing costs on a partial indemnity basis. The amount of $19,323.35 is awarded to Mr. Toles, also representing costs on a partial indemnity basis.

R.F. Goldstein J.

Date: August 8, 2013