Court File and Parties

COURT FILE NO.: CV-14-502968

DATE: 2015-09-24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Patrick Sinn, Plaintiff

AND:

Kenneth Drabble, The Drabble Private Client Group, Assante Capital Management Ltd., Assante Wealth Management Group, James P. Webb and Webb & Webb, Defendants

BEFORE: Pollak J.

COUNSEL:
Cameron J. Wetmore, for the Plaintiff

James P. Thomson, for the Defendants James P. Webb and Webb & Webb

Bruce O’Toole, for the Defendants Kenneth Drabble, The Drabble Private Client Group, Assante Capital Management Ltd., Assante Wealth Management Group

HEARD: July 17, 2015

COSTS ENDORSEMENT

[1] I have reviewed and considered the cost submissions of the parties. I agree with the submissions of the Drabble Defendants (Kenneth Drabble, The Drabble Private Client Group, Assante Capital Management Ltd., Assante Wealth Management Group) that:

“The factors to be considered by the Court in exercising its discretion to award costs under s. 131 of the Courts of Justice Act are set rule 57.01(1) of the Rules of Civil Procedure. The factors in rule 57.01(1) include:

(i) the principle of indemnity, including the rates charged;

(ii) the amount of costs that the unsuccessful party could reasonably expect to pay;

(iii) the complexity of the proceeding; and

(iv) any other matter relevant to the question of costs.

Although consideration of experience, rates charged and hours spent is appropriate, the overriding principle in fixing costs is fairness and reasonableness as applied to the factual matrix of the particular case. The quantum of the costs award should thus reflect what the court considers as a fair and reasonable amount that should be paid by the unsuccessful parties, rather than any exact measure of the actual costs to the successful litigant.”

[2] Mr. Sinn’s objection to the costs claimed by the Drabble Defendants is that senior counsel prepared the motion materials instead of junior counsel, under senior counsel’s supervision. Mr. Sinn does not provide any submissions with respect to what a reasonable amount of costs should be on a partial indemnity basis for the Drabble Defendants.

[3] I do not agree that the Drabble Defendants should have been limited to use junior counsel to prepare these materials. As stated above, rather, the considerations which I have referred to should be examined. When I do this examination, I conclude that the amount of costs claimed by the Drabble Defendants are reasonable and fair having regard to all of the above-noted factors. Further, I agree that such costs should have been reasonably anticipated by Mr. Sinn. I therefore award costs to the Drabble Defendants in the amount of $19,227.14 to be paid by Mr. Sinn.

[4] I do, however, agree with Mr. Sinn that when these considerations are applied to the costs requested by the Webb Defendants (James P. Webb and Webb & Webb), they do not support the conclusion that such an award of costs would be fair and reasonable in the circumstances or would have been reasonably anticipated by Mr. Sinn.

[5] The time spent by the Webb Defendants does appear to be excessive in the circumstances of this case. I therefore fix costs of $25,000 to be paid by Mr. Sinn to the Webb Defendants. The amounts I have awarded in costs are inclusive of all disbursements and applicable taxes.

Pollak J.

Date: September 24, 2015.