ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: CV-13-029
Date: 20140605

B E T W E E N:

RICHARD STERN AND
RAYMOND ROY

Howard B. Oldham, for the Plaintiffs

Plaintiffs

• and -

CHRISTOPHER DAVID O’GRAM

D. Andrew Thomson, for the Defendant

Defendant

HEARD: April 3, 2014

R U L I N G ON C O S T S

WILCOX, J.

[1] In my decision of April 23, 2014 dismissing the Respondent’s motion to remove Howard Oldham as counsel for the Plaintiffs, I reserved my decision on costs and sought written submissions which have now been received.

[2] S. 131(1) of the Courts of Justice Act states:

Subject to the provisions of an Act or rules of the court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[3] Rule 57 of the Rules of Civil Procedure lists the factors, in addition to the result of the proceeding, that the court may consider in exercising that discretion.

[4] This motion was one of several in this case that were on the docket on the same day. There was some disagreement over which should proceed, but the court chose to deal with this one so that all involved would know what, if any, counsel would be dealing with the other motions and the balance of the case. The motion itself then took about one and one half hours to argue.

[5] The factual situation was not particularly complex. Indeed, the affidavits filed on behalf of the Plaintiffs were somewhat repetitive of the facts from their point of view.

[6] The issue could have been an important one, in theory. As was said in the decision, it might have been preferable for Mr. Oldham not to have acted for the Plaintiffs in this matter because of the perception of conflict, but weighed against this were practical considerations with respect to choice and availability of counsel. On the other hand, there was substantial delay in bringing the motion. The Plaintiff’s concern appeared to be that he could not conceal assets from his legitimate creditors because of Mr. Oldham’s knowledge of those assets, the importance of which knowledge in this regard appeared to be overstated by the Defendant. This undermined the idea that there was a legitimate concern regarding Mr. Oldham’s role, tending to support the suspicion that the Defendant brought the motion for tactical reasons.

[7] While I believe that costs should be awarded to the Plaintiffs in the circumstances, the amount sought by them exceeds the amount that an unsuccessful party could reasonably expect to pay for this motion, in my view.

[8] I conclude that the Defendant should pay costs of $6,000 inclusive of fees and HST to the Plaintiffs within 30 days.

Mr. Justice J.A.S. Wilcox

Released: June 5, 2014