Court File and Parties

CITATION: Bayerische Landesbank v. Seiber, 2015 ONSC 4103

COURT FILE NO.: 04-CV-269165 CM3

DATE: 20160621

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Bayerische Landesbank Girozentrale, Plaintiff

– AND –

Grant Thornton Limited, Trustee of the Estate of Helmut Sieber, a bankrupt, Helga Sieber and H.J. Sieber Farms Ltd. and Rosen Ridge Farms Ltd., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL: Benjamin Bathgate and Anna Tombs, for the Plaintiff Allen Wilford, for the Defendant, Rosen Ridge Farms Ltd.

HEARD: costs submissions in writing

COSTS ENDORSEMENT

[1] On June 17, 2016, I released my ruling on the Plaintiff’s motion for a stay of proceedings and security for costs in respect of a forthcoming motion by the Defendant, Rosen Ridge Farms Ltd. (“Rosen Ridge”). I granted relief to the Plaintiff on both accounts, and so the Plaintiff deserves its costs of the motion.

[2] Both sets of counsel have submitted costs outlines. They are not particularly far apart – the Plaintiff seeks over $15,000 on a partial indemnity basis, and Rosen Ridge seeks over $10,000. Each side put a in substantial amount of work into the motion, including affidavits and substantial legal research and factums.

[3] Costs are, of course, discretionary under section 131 of the Courts of Justice Act. I am authorized by Rule 57.01(1)(a) to award costs with a view to the principle of indemnity for the successful party, and, in general, am required to consider what is “fair and reasonable” in fixing costs, having regard to the reasonable expectations of the parties: Boucher v Public Accountants Council (Ontario), (2004) 2004 14579 (ON CA), 71 OR (3d) 291, at paras 26, 38 (Ont CA).

[4] In this, I take direction from Rule 57.01(1)(0.b), which takes into account “the amount of cots that a unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed”. Given the extensive litigation between the parties, each side’s potential costs should have come as no surprise to the other. Rosen Ridge’s proposed motion seeks to set aside a substantial judgment in favour of the Plaintiff, and, in addition, Rosen Ridge has a number of costs awards against it which it has not yet paid. I am certain that Rosen Ridge expected the Plaintiff to invest substantial time and effort into the motion for a stay and for security for costs. The Plaintiff certainly did so, and the investment paid dividends.

[5] Rosen Ridge shall pay costs to the Plaintiff in respect of this motion in the amount of $15,000, inclusive of fees, disbursements, and HST.

[6] In my endorsement of June 17, 2016, I ordered that Rosen Ridge pay the Plaintiff $47,000 in previously outstanding costs and that it pay into court $40,000 as security for costs, all by June 30, 2016. Failing that, Rosen Ridge’s forthcoming motion to set aside the trial judgment is to be dismissed.

[7] To that I now add the present costs of $15,500. In addition to the amounts that Rosen Ridge must pay the Plaintiff and pay into court under my June 17^th ruling, Rosen Ridge must also pay $15,500 by June 30, 2016, failing which its motion to set aside the trial judgment shall be dismissed.

Morgan J.

Date: June 21, 2016