Court File and Parties
COURT FILE NO.: 11-50680
DATE: 20141124
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RICHARD KEENAN, Plaintiff
AND
ROBERT KEENAN, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Craig Bater and Emily Villeneuve, for the Plaintiff
Chantal Beaupré, for the Defendant
HEARD: By written submissions
costs ENDORSEMENT
[1] I heard this Contempt Motion and Motion to Strike the Defence on September 12, 2014.
[2] The Plaintiff seeks costs on a full indemnity basis in the amount of $67,466.99 in accordance with the Bill of Costs filed with the Court on September 12, 2014. The Plaintiff relies on the history of the case and the pattern of “misconduct” as described in the Reasons of this Court, specifically, my finding that the Defendant had “deliberately misled this Court, the trustee in bankruptcy and the official receiver.”
[3] The Plaintiff relies on the aggravating factors enumerated in Rule 57.01of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[4] In response, the Defendant relies on the same enumerated factors. The Defendant denies allegations that he attempted to prolong this matter and notes that the Plaintiff has already been compensated for costs in the amount of $12,000 as a result of his failed attempt to oppose the Plaintiff’s motion to lift the Stay of Proceedings.
[5] The Defendant submits that I should not consider the fact of the bankruptcy and the motion to lift the Stay of Proceedings as causes for delay in this motion as these events are foreign to the motion and costs that have already been fixed.
[6] The Defendant acknowledges that there are two grounds for awarding substantial indemnity costs and that these are: the conduct of the party and the existence of offers to settle. In this case, there were no formal offers to settle the motion exchanged by the parties and the motion was of short duration. The Defendant argues that there was only one cross-examination and submits that the four affidavits delivered on the motion were excessive, unnecessary and repetitive.
[7] Despite the finding of contempt, the Defendant argues that he did not act inappropriately in the conduct of the motion and furthermore, the Defendant submits that the Plaintiff’s counsel’s docketed hours are excessive and should be reduced to be consistent and similar to those advanced by Defendant’s counsel.
Conclusion
[8] The fact that the Defendant was found in contempt is in and of itself evidence that the Defendant’s conduct should be sanctioned by an award of costs on a higher scale; in this case, on a substantial indemnity basis. I have examined the Bill of Costs. One of the most significant disbursements was the fee of $12,738.55 paid to private investigators. While this amount is high, it was necessary as a result of the conflicting stories that the Defendant was providing in defence of this claim. I find the hours spent and the hourly rates to be reasonable. I note that there was an appropriate allocation of work to junior counsel at a significantly lesser rate. I will reduce the amount of fees however, having regard to the significant award of costs previously made as there appears to be some duplication of time and effort spent with respect to the motion to lift the Stay of Proceedings.
[9] I will reduce the claim for costs by the sum previously awarded and I therefore fix the total amount of costs in amount of $50,000 inclusive of HST and disbursements.
Mr. Justice Robert N. Beaudoin
Date: November 24, 2014
COURT FILE NO.: 11-50680
DATE: 20141124
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: RICHARD KEENAN, Plaintiff
AND
ROBERT KEENAN, Defendant
BEFORE: Mr. Justice Robert N. Beaudoin
COUNSEL: Craig Bater and Emily Villeneuve, for the Plaintiff
Chantal Beaupré, for the Defendant
costs ENDORSEMENT
Beaudoin J.
Released: November 24, 2014