SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CL-6969

DATE: 20140730

RE: ComputerShare, Applicant

- v. -

Cookstown Holdings Ltd. and Peter W.G. Carey, Respondents

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL:
E. Patrick Shea, for the Receiver Fuller Landau Group
Peter W. Carey, Self-Represented

COSTS ENDORSEMENT

[1] On this application for directions, the Receiver for Cookstown Holdings Ltd. sought, among other things, an order approving the distribution of the remaining proceeds in the estate of the debtor. The proposed distribution for the claim of Mr. Carey was $4,298.30. Mr. Carey sought the amount of $268,802. The Court allowed Mr. Carey's claim to the extent of $31,866.

[2] Mr. Carey now seeks costs of $38,287.27, inclusive of disbursements and HST, on a full indemnity basis which he says is justified by two considerations. He submits that the conduct of the Receiver substantially and unnecessarily lengthened and complicated the motion, in particular by filing an affidavit of Mr. Avon which it knew or should have known was false. He also says that the Receiver took no steps to try to settle the matter prior to proceeding in Court and, in particular, refused to disclose financial information regarding the status of the receivership that would have permitted settlement discussions.

[3] I am not persuaded that costs on a full indemnity basis are appropriate on the basis of either submission. It was clear on the record that Mr. Avon’s evidence was contradictory. The Receiver ultimately did not rely on the substance of Mr. Avon's more recent affidavit and did not act inappropriately in requiring a hearing on this matter rather than attempting a settlement. Further, it was not in a position to assess this claim until Mr. Carey was able to provide his invoices, after which the Receiver acted promptly. In addition, while Mr. Carey was partially successful on his claim, the award was substantially below the amount that he offered to the Receiver.

[4] However, as noted, Mr. Carey was partially successful on his claim and in an amount greater than the amount offered by the Receiver. He is therefore entitled to some costs on a partial indemnity basis. He seeks costs totaling $23,235.6 on such scale. As a solicitor, he is entitled to claim a reasonable hourly rate for the time spent on this matter on the basis that it was time taken away from other clients. I see no reason why he should not be entitled to costs out of the receivership assets because this is an insolvency proceeding.

[5] In fixing costs, I have had regard to the importance of this matter to the parties, particularly Mr. Carey, the reasonable expectations of the Receiver, which I think would have fallen within the range sought by Mr. Carey, and the fact that Mr. Carey was only partially successful. I find fair and reasonable costs to be $11,000 on an all-inclusive basis.

Wilton-Siegel J.

Date: July 30, 2014