Rougemount Capital v. Computer Associates International, 2015 ONSC 2323

Citation: Rougemount Capital v. Computer Associates International, 2015 ONSC 2323

COURT FILE NO. 04-CV-280634CM2

DATE: 20150410

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: ROUGEMOUNT CAPITAL INC. (Plaintiff)

AND: COMPUTER ASSOCIATES INTERNATIONAL INC. (Defendant)

BEFORE: M.A. SANDERSON J.

COUNSEL: Peter Cronyn and Fabrice Gouriou for the Plaintiff

Michael Round and Nicholas Robar for the Defendant

ENDORSEMENT re COSTS

[1] The parties agree the appropriate scale of costs is Partial Indemnity throughout.

[2] After a 31-day trial, I awarded damages to the Plaintiff of $11 million plus interest.

[3] The issues were complex and, given the amounts at issue, of great importance to the parties.

[4] I have in hand Bills of Costs including projected trial fees and disbursements, prepared by the parties on the eve of trial that I have used as one gauge for the reasonable expectations of the parties in respect of costs around the time of the commencement of trial. It is noteworthy that as of about March 14, 2014 (nine days before the trial started on March 23, 2014), the Defendant's estimated fees and disbursements on a partial indemnity basis were $1,047,933.47, including about $850,000 in partial indemnity fees.

[5] I have considered the factors in Rule 57.01(1) and applied them to the circumstances as I perceive them, gleaned in part from my observations during 31 days of trial.

Fees

[6] There were two counsel on each side, in my view reasonable, given the complexity and amounts in issue in this case.

[7] The time spent by counsel for the Plaintiff was not out of line with the time spent by counsel for the Defendant. The hourly rates were comparable and reasonable, given the relative seniority of counsel.

[8] The amounts claimed for costs were not disproportionate when properly viewed in context here. I have considered the submissions with regard to the proper relationship among actual, substantial indemnity and partial indemnity costs and have reflected those considerations in my final numbers. I have reviewed the time spent as set out in the Bill of Costs of the Plaintiff as well as the Defendant's submissions about duplication of effort, especially given the retainer of a new Plaintiff's counsel in September 2013 and also the number of lawyers who docketed time on the file.

[9] Bearing in mind the above and the factors under Rule 57.01(1), I fix the Plaintiff's partial indemnity fees at $675,000 plus HST.

Disbursements

[10] The Plaintiff has claimed total disbursements including HST at $240,610.26.

[11] Although I did not accept much of Mr. Tudor's evidence given in his capacity as an expert, I do not disallow expert fees for his attendance. I accept the Defendant's submission that a number of the disbursements claimed are not properly chargeable on a partial indemnity basis.

[12] Although originally Toronto counsel were retained and replaced by Ottawa counsel late in the day, Ottawa counsel's hourly rate being lower than the hourly rate of Toronto counsel, I do not deduct for airfare and hotel.

[13] I specifically allow the disbursement for daily transcripts where I encouraged them and counsel agreed they would be helpful.

[14] The Plaintiff is entitled to disbursements including HST of $238,000.

[15] Order to go accordingly.

M.A. SANDERSON J.

Released: