John Anthony Bennett v. Bennett Environmental Inc., 2015 ONSC 1132

COURT FILE NO.: CV-10-8563-00CL

DATE: 20150306

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: JOHN ANTHONY BENNETT, Plaintiff

AND:

BENNETT ENVIRONMENTAL INC., Defendant

BEFORE: Mr. Justice T. McEwen

COUNSEL: Nina Bombier and Brian Kolenda, for the Plaintiff

Eliot Kolers and Doug Hodgson, for the Defendant

READ: March 6, 2015

COSTS ENDORSEMENT

[1] I have reviewed the parties’ written submissions concerning the issue of costs as per my decision dated December 3, 2014. For the reasons below Bennett is entitled to his full indemnity costs of the motions in the all-inclusive amount of $264,304.26 plus U.S. $15,316.50.

[2] I have come to this decision for the following reasons:

i) I accept Bennett’s submissions that he is entitled to full indemnity costs on the basis that those costs were incurred by him in order to secure his right to advancement for the U.S. Criminal Proceedings and fall within the definition of “Legal Fees” as stated in paragraph a of the order of Wilton-Siegel J. dated December 29, 2010. Wilton-Siegel J. made it clear in his reasons that the costs associated with motions would be included. I agree.

ii) Given the above, I need not deal with the issue of costs at this time but the parties do not take exception to me doing so. In order so that costs can be promptly determined I am prepared to deal with the issue.

iii) In my view, Bennett did achieve success with respect to both motions. BEI’s motion was dismissed. Although Bennett did not achieve the advancement of the indemnification payments he sought he did receive ongoing funding on an amended basis.

iv) Although the costs sought by Bennett are significant, the matter involved a great deal of work which included a voluminous record (BEI itself delivered a 13-volume record), three days of examinations in Vancouver, four facta, and the involvement of a number of law firms involving several lawyers. Additionally, the issues in dispute were significant ones and of critical import to both parties. As noted below, subject to a reduction with respect to the fees charged by Plateau Investigations Inc., the fees sought are reasonable.

v) BEI submits that $100,000.00 all-inclusive would be reasonable but provides no breakdown as between fees, disbursements and H.S.T. Furthermore, and significantly, BEI has not provided the Court with any evidence or information concerning its own costs. In these circumstances it can hardly argue that the costs sought by Bennett could not have been reasonably contemplated by BEI. The law is settled that when a party attacks the costs submissions of another, and makes allegations of excess, it ought to provide a breakdown of its own costs. BEI has not done so. In these circumstances I agree with the comments of Winkler J. in Risorto v. State Farm Mutual Insurance Company [2003] O.J. No. 900, wherein he stated that such an attack “is no more than an attack in the air”.

vi) Further, I do not accept BEI’s argument that there was excessive duplication between the firms involved on behalf of Bennett, or that any of the firms’ activities were unnecessary or duplicative. BEI’s argument that too many lawyers worked on the file, in and of itself, is not persuasive particularly where BEI has provided no guidance with respect to the number of lawyers it retained.

vii) The only difficulty I have with Bennett’s costs involves the account of Plateau Investigations Inc. which totals $44,174.39. While the account falls within the definition of legal fees, and a review by Mr. Westman was reasonable, it is my view that it is excessive to allow for all of the time spent for the investigator to attend at discoveries. I would reduce his account by 50 percent for the fees to $20,792.62, plus the disbursements of $490.85 plus GST for a total of $22,344.00.

[3] Bennett is therefore entitled to costs in the amount of $264,304.26 plus U.S. $15,316.50.

Mr. Justice T. McEwen

Date: March 6, 2015