Court File and Parties

Court File No.: CV-1410791-00CL Date: 20160829 Superior Court of Justice – Ontario Commercial List

In the Matter of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c.C-36 as amended And in the Matter of a Plan of Compromise or Arrangement of 4519922 Canada Inc.

Before: Newbould J.

Counsel: Avram Fishman and Mark E. Meland, for Fishman Flanz Meland Paquin LLP, Creditors’ Committee counsel Barry H. Bresner, for FCA Canada Inc. Natasha MacParland, for the Monitor

Endorsement

[1] On June 6, 2016 I granted a motion by Fishman Flanz Meland Paquin LLP (“FFMP”) and directed that Chrysler was required to sign and deliver to FFMP an indemnity agreement and to pay its pro rata share of the cost of the tax advice of $86,061.78 paid by FFMP and the reserve of $28,743.75 for future tax advice. I dismissed a cross-motion by Chrysler and ordered costs to be paid by Chrysler to FFMP on a partial indemnity basis. I have now received cost submissions.

[2] FFMP claims costs of $138,923.68 inclusive of GST and QST. Chrysler says the costs should be no more than $50,000 inclusive of tax. Its cost outline was for fees of $39,672, although it was restricted to time of BLG and not of Woods LLP whose lawyers spent time on the matter.

[3] The fees claimed by FFMP are $118,131, being 60% of the actual amount billed. The 60% rate is in accordance with current practice. The issue is whether the total cost claim is reasonable.

[4] The motion and cross-motion had its complexities, including indemnification issues and tax issues that needed to be understood. It was obviously very important to FFMP. Prior to the hearing there was a cross-examination of Ms. Siminovitch on her affidavit. The hearing itself took about one-half day.

[5] Chrysler is critical of the number of hours docketed for this motion and cross motion by FFMP, being 418 hours, including 138.15 hours for two senior partners, Messrs Fishman and Meland. I think there is something in this criticism. I note that Ms. Siminovitch, a relatively senior lawyer at FFMP, docketed a further 140.3 hours. Chrysler is critical of the fact that both Mr. Fishman and Meland attended on the hearing of the motion. I think this is undue criticism. Chrysler had three lawyers attend on the cross-examination of Ms. Siminovitch on her affidavit, and had two lawyers in court on the argument of the motion. The fact that Chrysler chose not to have Mr. Catanu gowned does not detract from the fact that Chrysler though it important for Mr. Catanu to attend the hearing. The number of lawyers for both sides was an indication of the intricate history of the matter.

[6] I must take into account the factors in rule 57.01 including the amount that the unsuccessful party could reasonably expect to pay. In this case, Chrysler took an unreasonable position and also raised issues that it ought not to have. Chrysler had to understand that the importance of the matter to FFMP meant it would thoroughly defend its position as to the need for an indemnity and the other matters that were raised. I mentioned in my endorsement the unfortunate relationship between Chrysler or its counsel and FFMP and the other Participating Creditors. This has no doubt added to the costs of this motion.

[7] Taking into account all of the factors in rule 57.01, including what an unsuccessful party such as Chrysler could reasonably expect to pay to FFMP, I assess the fees of FFMP at $85,000 and the disbursements as claimed of $2,698.47, to which is to be added the applicable GST and QST taxes. These amounts are to be paid by Chrysler to FFMP within thirty days.

Newbould J. Date: August 29, 2016