NEWMARKET

COURT FILE NO.: CV-12-109855-00

DATE: 2015-07-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KALOGON SPAR LTD., Plaintiff

AND:

STANLEY PAPAGEORGE, ALEXANDRA PAPAGEORGE and BANK OF MONTREAL, Defendants

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL:
Howard Wolch, for the Plaintiff

Ed Hutin and Neil G. Wilson, for the Defendant

HEARD: By written submissions

COSTS ENDORSEMENT

[1] The defendants brought a motion for an order that the plaintiff post security for costs. One aspect of the costs related to fees of former counsel for the defendants, Mr. Jonathan Baker. The defendants requested $4,152.75 including HST for 10.5 hours of his time. On the motion, there was no evidence as to the work carried out by Mr. Baker.

[2] My decision dated April 24, 2015 required the plaintiff to post security of $18,000 on May 8, 2015 and $18,000 on September 30, 2015. I declined to include Mr. Baker’s fees in my consideration of the amount of security to be posted. I stated, “This may be addressed at a later date if the defendants can provide evidence to the court with respect to the nature of the work that he carried out.”

[3] With respect to costs of the motion, the defendants requested $7,537 for fees plus disbursements and HST. I allowed $6,000 for fees plus disbursements and HST totalling $7,098.26. I required the fees to be posted in two equal installments together with the security such that the plaintiff was required to post a total amount of $21,549 on May 8, 2015 and $21,549 on September 30, 2015.

[4] The defendants now provide submissions regarding Mr. Baker’s fees. They state that when they received Mr. Baker’s dockets, they learned that he spent 62.6 hours on this action and a consolidated companion action. The defendants have provided copies of Mr. Baker’s accounts showing the dates when work was done and the related hours. The entire descriptive section in all of the accounts has been redacted. In the affidavit of Brandy Kaddoura, a legal assistant in defendants’ counsel’s office, sworn June 15, 2015, she states, “I have reviewed Mr. Baker’s dockets and they include, among other things, intake and investigation, drafting of pleadings, correspondence and communication relating to same.”

[5] While Mr. Baker may have spent 10.5 hours carrying out the work described by Ms. Kaddoura, I am not content to accept a legal assistant’s evidence regarding this issue. In my decision on the motion, I requested evidence as to the nature of the work carried out by Mr. Baker. The descriptions provided by Mr. Baker himself in his accounts would be the best evidence of the work that he performed. I fail to see why the defendants redacted the entire descriptive section of Mr. Baker’s accounts. If any of them included solicitor-client privileged communications, those alone could have been redacted. Another factor that should be noted is that aside from Mr. Baker’s fees, I did not reduce the amount of security requested by the defendants. Accordingly, the amount of security posted shall not be increased.

[6] The defendants raised several other issues in their submissions. They made an offer to settle prior to the hearing of the motion. One of its terms was that the defendants would post $20,000 in two installments for security for costs. They submit that even if no further amount is awarded for Mr. Baker’s fees, the offer should still be considered in determining appropriate costs because the court has discretion to take into account any offer. They state that they complied with the spirit of Rule 49.

[7] The amount that was ordered to be posted is less than the defendants’ offer. Accordingly, the defendants’ offer does not impact on costs. Furthermore, the plaintiff did not conduct itself in a manner that would attract substantial indemnity costs.

[8] The defendants requested an additional $800 in costs for the motion because part of the motion for security also included a request for relief regarding undertakings. The undertakings issue was not argued during the motion. The defendants requested $7,537 for fees. I allowed $6,000 for fees, which is 80% of the amount requested. The request for a further $800 is a de minimus issue. The request for an additional $800 in costs is denied. The amount previously awarded for costs is fair and reasonable, given all of the circumstances.

[9] The defendants also requested that the costs be payable to the defendants forthwith rather than being part of the security posted. This issue was raised when the motion was argued. I am not prepared to reconsider my decision in this regard.

[10] The defendants also requested a timetable with the first event, being examinations for discovery, to be completed prior to August 31, 2015. While the defendant’s request for a timetable is reasonable, the August 31, 2015 date may be difficult to achieve due to summer holidays. The parties are encouraged to agree to a realistic timetable.

[11] No costs are ordered regarding this matter.

VALLEE J.

Date: July 28, 2015