SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-12-466156
Hearing Date: November 5, 2013

RE: V. Vinokur Foundation in Support of Culture and Arts v. Mark Lathem, Litigation Administrator for the Estate of Oleg Fraev, Vladislav Moskalev and Snowview Bancorp Inc.

BEFORE: MASTER R. A. MUIR

COUNSEL:
Albert Formosa and Rachel Goldenberg for the plaintiff

David Taub and Barbara Green for the defendant Snowview Bancorp Inc.

Tim Gleason, counsel to the lawyers for the plaintiff

ENDORSEMENT

[1] This costs endorsement arises from a costs hearing held before me on November 5, 2013. On November 19, 2013 I released my endorsement from that hearing. I ordered the plaintiff to pay the costs of the defendant Snowview Bancorp Inc. (“Snowview”) in the amount of $35,000.00. I dismissed the request by Snowview for an order that those costs be paid by WeirFoulds LLP (“WeirFoulds”) and Krista Chaytor personally.

[2] WeirFoulds and Ms. Chaytor now seek their costs of the Rule 57.07 hearing. They ask for $21,800.64. This figure represents the full amount of the fees charged by WeirFoulds’ lawyers.

[3] The plaintiff acknowledges that WeirFoulds was successful at the costs hearing. However, the plaintiff suggests that $5,000.00 is fair and reasonable in the circumstances.

[4] I agree with the plaintiff that the costs sought by WeirFoulds are somewhat excessive in the circumstances. I am not prepared to award full indemnity costs as requested by WeirFoulds (even at Mr. Gleason’s reduced rates). I do not view Snowview’s conduct as reprehensible. In addition, I note that I awarded the plaintiff $35,000.00 for its costs of the action as a whole (although almost all of the time involved related to Snowview’s motion to discharge the plaintiff’s CPL).

[5] However, I also note that I awarded the defendant Vladislav Moskalev (“Moskalev”) $10,000.00 for his costs in connection with his motion to discharge the plaintiff’s CPL. In my view, the work undertaken by WeirFoulds’ lawyers in connection with the Rule 57.07 motion was somewhat more complex and involved than Moskalev’s motion to discharge the CPL. WeirFoulds lawyers had to familiarize themselves with the underlying litigation. Responding materials were prepared and served. Cross-examinations took place. A factum was delivered.

[6] The Rule 57.07 motion was a serious matter for WeirFoulds. It was faced with a demand from Snowview for payment of more than $100,000.00 in costs. Moreover, the professional integrity and conduct of WeirFoulds and Ms. Chaytor were being questioned. It was reasonable for counsel to devote a significant amount of time to responding to the motion.

[7] For these reasons, it is my view that it is fair and reasonable that Snowview pay WeirFoulds’ and Ms. Chaytor’s costs of the Rule 57.07 motion on a partial indemnity basis in the amount of $15,000.00.

[8] Both Snowview and the plaintiff seek their costs of the costs hearing from each other in the approximate amount of $4,800.00. In my view, no costs should be awarded. Snowview sought $144,000.00 prior to the hearing and $100,000.00 at the hearing. Its offer to settle was for a costs payment of $70,000.00. The plaintiff’s primary position was that no costs order should be made in favour of Snowview. I did not accept either party’s position and instead I awarded $35,000.00 in costs to Snowview. In my view, success was divided. It is fair and reasonable that there be no further costs order as between the plaintiff and Snowview.

[9] I therefore order as follows:

(a) Snowview shall pay the costs of the Rule 57.07 motion to WeirFoulds and Ms. Chaytor fixed in the amount of $15,000.00, inclusive of HST and disbursements; and,

(b) there shall be no further costs order as between the plaintiff and Snowview.

Master R. A. Muir

DATE: December 12, 2013