COURT FILE AND PARTIES
COURT FILE NO.: 12-55497
DATE: 20131016
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Commissioner of Competition, Plaintiff
- and –
Rogers Communications Inc. et al, Defendants
BEFORE: Hackland R.S.J.
COUNSEL:
David R. Wingfield and Derek Leschinsky for the plaintiff
Christopher P. Naudie for the defendants
COSTS ENDORSEMENT
[1] The Commissioner was successful in resisting the defendants’ motion for particulars, for reasons set out in the court’s endorsement reported at [2013] O.J. No. 2873. The parties agree that the Commissioner is entitled to his partial indemnity costs of the motion and the court’s objective then is to fix a reasonable amount, having in mind the Rule 57 considerations.
[2] The Commissioner claims that it has incurred $106,569 in responding to the defendants’ joint motion and seeks an award of $70,000 on a partial indemnity basis. The defendants suggest that the sum of $42,055 would be appropriate. Both the Commissioner and the defendants (jointly) have delivered careful and detailed costs submissions which I have found to be of considerable assistance.
[3] Both parties acknowledge that this is very complex and important litigation, potentially involving large sums of money and engaging the public interest. Both sides have brought considerable resources to bear and the documentation filed on the motion was very extensive. While this was a pleadings motion, it was nonetheless extremely complex involving three days of argument, four days of cross-examination and, as noted, extensive documentation.
[4] I consider the hourly rates and time expended by the Commissioner’s lawyers to be very reasonable. However, I am persuaded by the defendants’ submissions that some reduction in the Commissioner’s claim is required for the following reasons:
(a) The Commissioner’s cross-motion to strike the affidavits of the defendant’s representatives was unnecessary in my view, and was withdrawn. I would make a notional reduction in reference to the time expended on that cross-motion.
(b) The costs referable to document organization and review in the pre-motion investigative stage of this proceeding should be viewed as costs of the action rather than the motion.
[5] I award the Commissioner his costs of the motion which I fix in the sum of $60,000 inclusive of disbursement and HST, which is awarded against the defendants jointly to be divided as they consider appropriate, and payable within 30 days of the release of this endorsement.
Mr. Justice Charles T. Hackland
Released: October 16, 2013
COURT FILE NO.: 12-55497
DATE: 20131016
SUPERIOR COURT OF JUSTICE - ONTARIO
The Commissioner of Competition
And
Rogers Communications et al
COSTS ENDORSEMENT
HACKLAND R.S.J.
Released: October 16, 2013