COURT FILE NO.: CV-12-9610-00CL

DATE: 20150929

SUPERIOR COURT OF JUSTICE – ONTARIO
COMMERCIAL LIST

BETWEEN:

MOHAN ROOPCHAND, MEJJ ENTERPRISES INC and MONDAY’S CHOICE MANAGEMENT CORPORATION

Plaintiffs, Defendants by Counterclaim

AND:

KIM CHAU and CENTURY 21 LEADING EDGE REALTY INC.

Defendants, Plaintiffs by Counterclaim

BEFORE: Newbould J.

COUNSEL:
R. Trent Morris, for the Plaintiffs/Defendants by Counterclaim

Lou Brzezinski and Chad Kopach, for the Defendants/Plaintiffs by Counterclaim

ENDORSEMENT

[1] Mr. Chau seeks costs on a substantial indemnity scale. In my view he is entitled to such costs to the date of the first trial. Mr. Roopchand claimed that he had not signed the shareholders’ agreement and that it was put forward by Mr. Chau as a fraudulent forgery. Unsupported allegations of fraud can visit a higher award of costs. This is such a case. Although Mr. Roopchand said at the second trial he viewed the shareholders’ agreement as a fraudulent document, that was not an issue on the second trial. The only issue was as to what amount should be paid to Mr. Chau. Thus Mr. Chau is entitled to an award of costs on a substantial indemnity basis to the end of the first trial and on a partial indemnity basis thereafter.

[2] There are two bills of costs. The first is for the work of Mr. Chau’s first solicitor Larry Franschman and the second by Mr. Chau’s current solicitors.

[3] Objection is taken to only some aspects of the bill of costs of Mr. Franschman. The first is that too much time was spent on pleadings. What time would have been proper for pleadings is not said, nor is the time spent by Mr. Roopchand’s lawyers on pleadings provided. The time does not look out of place.

[4] Objection is also taken to preparation for trial by Mr. Franschman as he did not act as trial counsel. He prepared for the trial that was scheduled to commence in June, 2011 but it was adjourned and new counsel then acted for Mr. Chau. The work done by Franschman does not appear to have been unusual or of no use. For example, it included notices to admit and other pre-trial preparation. Why the trial was put off was not said by counsel for Mr. Roopchand but from the endorsement of Hoy J. of April 6, 2011 it appears that Mr. Roopchand was the cause of much delay and I infer it may have been his fault that the trial did not proceed as scheduled in June, 2011. The fact that the next year Mr. Chau’s new lawyers had to spend time preparing should not mean that all of the work done the previous year should not be allowed. A reasonable amount should be allowed.

[5] Objection is taken to one filing fee on a motion for summary judgment that was unsuccessful. That is de minimus but I will not allow it. The same goes for the transcript costs for that motion of $802.65.

[6] Regarding the bill of costs of Mr. Chau’s current lawyers, it is said on behalf of Mr. Roopchand that the 155 hours spent on the case up to and including the first trial is conceded to be at the high end of a reasonable range, provided that a substantial reduction in the time claimed for Mr. Franschman is made. It is asserted that a reasonable reduction would be to disallow all of the time spent by Mr. Franschman for pleadings and trial preparation, being $29,802.50. It is conceded on behalf of Mr. Roopchand that the time spent by Mr. Chau’s current lawyers for the second trial is reasonable and is consistent with the time spent on behalf of Mr. Roopchand. No criticism of the hourly rates charged by the lawyers is made.

[7] The total claim for fees up to the end of the first trial on a substantial indemnity basis is approximately $85,000 plus HST for Mr. Franschman and approximately $59,000 plus HST for Mr. Chau’s current lawyers for a total claim for fees to the end of the first trial on a substantial indemnity basis of approximately $144,000 plus HST. I accept that there will have been some overlap caused by the change of lawyers for Mr. Chau but not nearly as much as asserted on behalf of Mr. Roopchand. In my view, a reasonable amount for substantial indemnity costs up to the end of the first trial is $125,000 plus HST. The disbursements allowed are all of the disbursements claimed less $1,090.65, plus applicable HST.

[8] Regarding the claim for fees for the second trial, I allow the claim on a partial indemnity basis in the amount of $27,600 plus applicable HST. The time charged was reasonable and the hourly rates charged are also reasonable. I have allowed 60% of the actual hourly rates charged. The disbursements claimed of $2,072.89 are allowed, plus applicable HST.

[9] In the result, total fees of $152,600 and disbursements of $10,032.25 are allowed, plus applicable HST.

Newbould J.

Date: September 29, 2015