Court File and Parties
COURT FILE NO.: CV-08-361644 DATE: 201609 28 SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN :
THE POLISH ALLIANCE OF CANADA Plaintiff
AND:
POLISH ASSOCIATION OF TORONTO LIMITED, MAREK MIASIK aka MAREK ADAM MIASIK, MARIA MIASIK, JAN ARGYRIS aka LOUIS JOHN ELIE ARGYRIS aka LOUIS aka JOHN ARGYRIS, WLADYSLAW JASLAN aka WLADYSLAW JULIAN JASLAN, HELENA JASLAN, EUGENIUSZ SKIBICKI, CZESLAWA ERICKSEN, STANISLAW ROGOZ aka STAN ROGOZ, ALBERT JOSEPH FLIS and RICHARD RUSEK Defendants
AND:
POLISH ASSOCIATION OF TORONTO LIMITED, MAREK MIASIK aka MAREK ADAM MIASIK, MARIA MIASIK, JAN ARGYRIS aka LOUIS JOHN ELIE ARGYRIS aka LOUIS JOHN ARGYRIS aka JOHN ARGYRIS, WLADYSLAW JASLAN aka WLADYSLAW JULIAN JASLAN, HELENA JASLAN, EUGENIUSZ SKIBICKI, CZESLAWA ERICKSEN, STANISLAW ROGOZ aka STAN ROGOZ, and ALBERT JOSEPH FLIS Plaintiffs by Counterclaim
AND:
THE POLISH ALLIANCE OF CANADA, ROBERT ZAWIERUCHA, TADEUSZ MAZIARZ, ELIZABETH BETOWSKI, DANUTA ZAWIERUCHA, TERESA SZRAMEK, ANDRZEJ SZUBA, ADAM SIKORA, ELZBIETA GAZDA, STANISLAW GIDZINSKI, STANISLAW IWANICKI and TADEUSZ SMIETANA Defendants by Counterclaim
BEFORE : F.L. Myers J.
COUNSEL: B.A. Kaminsky, for the Plaintiff Bernie Romano, for the Defendants/Respondents, except for Richard Rusek
HEARD: September 28, 2016
COSTS ENDORSEMENT
[1]
Background
By Endorsement dated August 24, 2016, reported at 2016 ONSC 5368, I granted the defendants (other than Mr. Rusek) [1] indemnity for their 50% share of the Receiver’s costs of the appeal and for 50% of their costs of the trial. The Endorsement also scheduled the filing of submissions concerning the costs of the motion and the quantification of the costs of the trial. Being aware that the plaintiff has had problems delivering material required for prior court proceedings on a timely basis, I specifically canvassed the schedule for delivering submissions and Costs Outlines with counsel. Mr. Kaminsky assured the court that if the defendants delivered their material by September 9, 2016, the plaintiff and he would have sufficient time to deliver its material by September 23, 2016.
2The defendants delivered their material on September 9, 2016 as scheduled. Despite being provided with a month to deliver no more than 10 pages of submissions and Costs Outlines for the motion and trial, the plaintiff did not deliver any material by the scheduled date. It has not sought an extension of the scheduled due date. Rather, it has failed to provide its Costs Outlines despite the requirement that it do so set out in para. 21 of the August 24, 2016 Endorsement. The plaintiff has left me without a basis to compare the costs claimed by the defendants to those incurred by the plaintiff for both proceedings. As such, I am driven to infer that the plaintiff’s Costs Outlines would have disclosed that it incurred costs equal to or greater than the costs sought by the defendants. I see no logical inference from the plaintiff’s failure to participate other than that it felt it had nothing useful to offer and that its Costs Outlines would have been sufficiently unhelpful to its position so as to justify defying a clear direction that they be delivered.
[3]
Costs of the Motion
The defendants were successful on the motion on August 24, 2016. Costs ought to follow the event. The defendants seek costs on a partial indemnity basis based on a counsel rate of $400. Counsel’s full rate is $450. Partial indemnity costs are more properly calculated at closer to 60% of actual costs. Noting Mr. Romano’s seniority at the bar, in my view, 60% of his full rate is too low and provides a benefit to the plaintiff from what it ought reasonably to have expected to pay. An hourly rate of $350 is more fitting for a partial indemnity for counsel of Mr. Roman’s seniority and experience and produces a result that is well within the range of what the plaintiff ought reasonably to have expected. I have reviewed Mr. Romano’s Costs Outline for the motion and find it to reasonable particularly in the absence of submissions from the plaintiff to the contrary. The plaintiff will therefore pay costs of the motion on a partial indemnity basis to the defendants forthwith in the amount of $10,075 inclusive of disbursements and taxes.
[4]
Costs of the Trial
The trial took 12 days. At its core the lis concerned ownership of a $50 million development property that is the defendants’ branch clubhouse that was claimed by the plaintiff. The defendants took a number of steps to try to improve their position to assert ownership of the clubhouse including purporting to leave the plaintiff organization and an effort to restructure the governance of PATL. The defendants succeeded in fending off the plaintiff’s attack on their clubhouse but they were not successful in leaving the plaintiff organization with the property. However, the Court of Appeal has ruled that they can try again.
5The trial involved tracing the history of the Polish Alliance of Canada from its formation in 1907 to date. There were a very large number of records and historical documents that had to be reviewed to trace forward the various transactions entered into by the parties including other branches of the plaintiff. Many of the documents were written in Polish. There were a number of different iterations of the by-laws and constitution of the plaintiff and its unincorporated predecessor. Handwritten shareholder ledgers had to be analyzed. There were changes to the background corporate law over time that needed to be assessed. The issues involved the continued existence of Branch 1-7 and its members’ ongoing equitable title to the clubhouse. Hence, in addition to being very complex, the issues were very important to the parties.
6In the best traditions of the bar, Mr. Romano carried the defendants’ receivable for several years pending trial. The defendants argue that Mr. Romano might well be entitled to a bonus were he to seek one. He has put forward his hourly rates as they grew over time to, as noted above, $450 starting in 2014. In my view, in all of the circumstances, a partial indemnity rate of $400 for Mr. Romano for the trial in 2014 is appropriate. While I did not allow that rate for the motion, the motion lacked the importance, difficulty, and financial risk presented by the trial. I have reviewed the defendants’ Costs Outline for the trial and find it to be fair and reasonable particularly in the absence of submissions from the plaintiff to the contrary and inferring, as I do, that the plaintiff incurred the same or higher costs. I therefore fix 50% of the defendants’ costs of the trial for the purposes of the August 24, 2016 Endorsement at the sum of $194,159.70 inclusive of disbursements and taxes.
F.L. Myers J. Date: September 28, 2016
1In this Endorsement the term “defendants” always excludes Mr. Rusek who is not involved in this part of the proceeding.