Court File and Parties

Court File No.: CV-13-1288
Date: 2014-07-15
Superior Court of Justice - Ontario

Re: ATTORNEY GENERAL OF ONTARIO, Applicant/Moving Party

And: $4,067,685.10 IN CANADIAN CURRENCY (IN REM), Respondents

Before: The Hon. Madam Justice S.E. Healey

Counsel:
J. McKeachie, for the Applicant/Moving Party
W. Friedman and P. Bakos, for the Respondents

Heard: By written submissions

Costs Endorsement

[1] This endorsement deals with costs of the Attorney General’s motion for a stay of an order pending a motion for leave to appeal. The order sought to be appealed is that of Justice Vallee, released on April 23, 2014. That order directs that the sum of $4,067,685.10 was to be released to the respondents on May 7, 2014.

[2] The Attorney General contends that the motion had to be brought on short notice on Friday, May 2, 2014, because there were no judges available in Central East Region during the following week due to a judicial conference. I accept that this fact proves the necessity to bring the motion within a short time frame. However, the respondents have provided evidence that they were only notified of the Attorney General's intention to bring the motion the day before. The Attorney General has not explained why the matter was left to the last minute. This left the respondents with no ability to file responding material. Accordingly, the opposition to the motion must be viewed in this context; having been notified of and served with the motion only the day before its intended return, there was little time for the respondents to formulate a position. However, knowing that the motion for leave was to be heard the next month, and knowing that a return of the money would render the appeal moot - this being an in rem proceeding and a return of the money could easily and predictably result in transfer of the funds from the jurisdiction and therefore irreparable harm - the respondents opposition to the motion was unreasonable.

[3] However, the submissions of the respondents are logical. The Attorney General would have been required to prepare, serve and file the material, and appear before the court on short notice, even if the order was being made on consent. The respondents should not be required to pay those costs, which were necessary even in the event of the respondents' consent.

[4] According to the Attorney General's Costs Outline, the time spent in court for argument was three hours. On a partial indemnity basis, using Mr. McKeachie’s rate, the costs incurred were $360. Another hour in time should be added to deal with the cost submissions. In the result, this court orders that the respondents Fercan and Vincent DeRosa shall jointly and severally pay the costs of the motion for a stay to the Attorney General fixed in the amount of $542.40 inclusive of HST, and payable in 30 days.

[5] Although the respondents rely on Curran Farm Equipment Ltd. v. John Deere Ltd., 2010 ONSC 4125 (S.C.J.) and Hanemaayer v. Freure, [2004] O.J. No. 4469 (S.C.J.) for the proposition that cost of the motion to stay should be reserved to the judge hearing the motion for leave to appeal, and if granted, then to the Divisional Court hearing the appeal, these are not binding precedents. This was a discrete step in the proceeding, and there was clear success. Even if the Attorney General is ultimately unsuccessful in the proceeding, whether at the leave stage or on appeal if leave is granted, the motion to obtain a stay in order to preserve its rights pending appeal was a necessity, and the unnecessary costs caused by the opposition call for compensation.

HEALEY J.

Date: July 15, 2014