Court File and Parties

Court File No.: CV-15-526401 Date: 201605 16 Superior Court of Justice - Ontario

Re: Bloor Street Diner Limited, Applicant And: The Manufacturers Life Insurance Company, Respondent

Before: Stewart J.

Counsel: Peter J. Osborne, for the Applicant Ian Cantor, for the Respondent

Heard: In Writing

Costs Endorsement

[1] In my decision in this matter, I invited counsel for the parties to deliver written submissions on costs if that subject could not be agreed upon by them.

[2] I now have received and considered those submissions, including Reply submissions delivered by the Applicant.

[3] The Applicant seeks its costs on a partial indemnity basis in the amount of $154,223.35, inclusive of disbursements and applicable taxes.

[4] The Respondent agrees that the Applicant is entitled to its costs in light of its success on the application and that such costs should be on a partial indemnity basis. However, it argues that the hourly rates claimed are too high and the overall amount reflects unnecessary duplication, includes improper expert fees and is excessive.

[5] The Respondent therefore submits that a more reasonable and fair amount to award to the Applicant for its costs, inclusive of allowable disbursements and taxes, is $87,011.24.

[6] The subject matter of the application was of obvious great importance to the parties. It was necessary to prepare and file extensive affidavit material, to conduct cross-examinations and to prepare for court attendance to argue the issues.

[7] The argument on the application took two days to complete. Ultimately, the issues raised were addressed and decided based upon the terms of the governing commercial lease that had been entered into by these comparatively experienced and sophisticated parties. In my view, those terms were straightforward.

[8] Having reviewed the Bill of Costs submitted by the Applicant and despite the Applicant’s submissions on this subject, I consider there is inevitably some duplication of effort by the several individual lawyers and assistants included therein. In considering the amount claimed, I have taken into account the expert fees included, but have also reviewed them in light of the central issues upon which the arguments and result turned.

[9] When all of the factors affecting the exercise of discretion as to costs are taken into account, including the reasonable expectations to the parties and the over-arching principle of proportionality, I consider a fair and reasonable amount to award to the Applicant for its costs is $120,000.00, inclusive of disbursements and applicable taxes.

[10] The Respondent shall therefore pay to the Applicant the amount of $120,000.00 for its costs within 30 days of the date of this endorsement.

Stewart J. Date: May 16, 2016