COURT FILE NO.: 02-CV-237070CM3

DATE: 20140213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: United States of America and United States Federal Trade Commission / Plaintiff / Moving Party

AND:

George Yemec, Anita Rapp et al / Defendants / Responding Parties

BEFORE: Justice E. P. Belobaba

COUNSEL: Earl Cherniak and Malcolm Ruby for the Moving Party / Plaintiff

David Wires and John Wires for the Responding Parties / Defendants

HEARD: September 4, 2012

COSTS ON RECUSAL MOTION

[1] Before commencing the Damages Inquiry in this matter, I heard and dismissed a recusal motion on September 10, 2012. The Damages Inquiry began three weeks later, on October 1, 2012 and concluded at the end of January, 2013. I released my Damages Decision on April 2, 2013 and awarded the defendants a total of $954,576 in damages which included $595,000 for the legal costs of the Damages Inquiry.

[2] I noted in the Damages Decision at para. 192 that “the legal costs incurred on the 2012 recusal motion do not fall within the parameters of this inquiry because the issues in that motion related to my 2012 Atlantic Lottery decision[^1] and cannot be attributed to the 2002 ex parte orders.” I had also assumed that the costs incurred by the successful defendants on the 2012 recusal motion had not been claimed in their Damages submissions and could therefore be claimed by the defendants at a later date.

[3] I now realize that my assumption was wrong. In fact, as the plaintiff points out, the costs of the recusal motion had been included by the defendants’ in their overall claim of $848,423 for the legal costs of the Damages Inquiry. This is clear from a review of the defendants’ Response to Request for Costs Information dated December 3, 2012 at pages 181- 82, docket entries 3121 to 3153, and from their written submission dated January 22, 2013 at Category A(2), paras. 9 to 13.

[4] The amount that I found to be appropriate, $641,737, (which I topped up to $700,000 and then discounted to a final number of $595,000) was based on the plaintiff’s careful review of the defendants’ dockets. The plaintiff says that its overall tally of $641,737 included the costs of the recusal motion.[^2] If this is so, and I have no reason to doubt this,[^3] then the costs of the recusal motion were indeed included in my $595,000 damages award and cannot and should not be recovered again.

[5] Therefore, the defendants’ belated request for $23,699 all-inclusive in partial indemnity legal costs for the 2012 recusal motion must be dismissed because these costs have already been awarded by this court in its Damages Decision of April 2, 2013.

[6] Given that the defendants’ request for the costs of the recusal motion was likely prompted by this court’s statement in para. 192 of its Damages Decision, no further costs will be awarded for this additional skirmish and none should be sought.

Belobaba J.

Date: February 13, 2014

[^1]: Yemec and Rapp v. Atlantic Lottery Corporation, 2012 ONSC 4207, [2012] O.J. No. 3956.

[^2]: The plaintiffs say that in reviewing the defendants’ dockets, they used a start date of June 12, 2011. The dockets relating to the recusal motion that was heard in September, 2012 were therefore included in the tally.

[^3]: I accept plaintiff counsel’s statement. However, if the defendants can show otherwise, the matter can be revisited.