CITATION: Trade Capital Finance Corp v. Cook, 2016 ONSC 6446
COURT FILE NO.: CV-15-2110-00
DATE: 2016-10-14
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TRADE CAPITAL FINANCE CORP., Plaintiff
- and - PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DAYAWANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO MR. DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT MR. DE MARIA also known as CARLO VINCENZO MR. DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC., OAK HILLS WATER DURHAM INC., JOSHUA COOK, ELIZABETH COOK, REBECCA COOK, MARK PINTUCCI, MARCO SANTONATO also known as MARC SANTONATO and NEW ERA RESOLUTIONS & CONSULTING INC., Defendants
BEFORE: EMERY J.
COUNSEL: Peter W. G. Carey and Christopher R. Lee, for the Plaintiff Andrew Parley and Laura Robinson, for the non-party, 2454904 Ontario Inc. Alysha Shore, for the non-party Red Quest Holdings Inc.
HEARD: In Writing
COSTS ENDORSEMENT
[1] The non-parties, 2454904 Ontario Inc. and Red Quest Holding Ltd. seek costs thrown away for an attendance before the court on May 20, 2016, in connection with an underlying motion to vary a mareva order that is yet to be heard. Those parties also seek their costs on a motion brought by the plaintiff, Trade Capital Finance Corp., to enforce questions from a cross-examination the affiant Carlo De Maria refused to answer because the court ordered that Mr. De Maria answer only one of the 26 questions refused.
[2] Trade Capital takes the position that it was successful on a subsequent motion to introduce fresh evidence to assist the court with adjudicating the refusals motion, and that success was divided on the refusals motion. Trade Capital also takes the position that Red Quest as the moving party was the only party that may be entitled to costs. 245 filed no material and played a minor role at the motions and should not be entitled to costs at all.
[3] It is a fundamental principle that, except in the most unusual circumstances, costs follow the event: Bell Canada v. Olympia & York Developments Ltd., 1994 239 (ON CA), 1994 Carswell Ont. 520 (Ont. C.A.).
[4] It is also a fundamental principle that the amount of those costs be fair and reasonable for the unsuccessful party to pay. This principle was set out with clarity in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (Ont. C.A.).
[5] The amount that is fair and reasonable must be measured by what the court determines to be fair and reasonable, not the actual amount the successful party was required to pay its counsel: Zesta Engineering Ltd. v. Cloutier (2002) 25577 (Ont. C.A.). Nor is the fair and reasonable amount the product of multiplying the number of hours expended by counsel for the successful party multiplied by the applicable hourly rate.
[6] The underlying motion to vary was adjourned so that Trade Capital could bring its motion to enforce undertakings and refusals, with costs reserved to that motion. Red Quest provided answers to satisfy all undertakings by the time the motion was heard. The motion therefore proceeded on the questions refused, sometimes with reference to the answers given to the undertakings.
[7] I consider the motion for refusals and the motion to adduce fresh evidence as a consolidated exercise on which to determine costs. Although Trade Capital argues that success was divided in that the motion to adduce fresh evidence and that an order was granted for Red Quest to answer one of the refused questions, the motion to adduce fresh evidence was by its nature ancillary to the motion to compel Mr. De Maria to answer the refused questions.
[8] In my view, 245 and Red Quest were mostly the successful parties overall. I refer to the decision of Master Glustein (as he then was) in Bank of Nova Scotia et al v. PCL Constructors Canada Inc. et al, 2009 Carswell Ont. 6817, at para. 4, where he awarded costs to the defendants on the motion before him because “success was divided more in favour” of the defendants as a measure of success for the purpose of awarding costs.
[9] Red Quest and 245 are therefore entitled to costs of the related motions and attendances.
[10] Red Quest seeks costs on a partial indemnity basis in the amount of $15,589.30, compared to its actual costs of $33,154.02. No offer to settle on the motion has been brought to my attention to warrant a higher level of costs. I observe that no argument has been made by Red Quest that Trade Capital has conducted itself in the reprehensible or egregious manner required to support a claim for costs at a higher level in cases such as Davies v. Clarington (Municipality of) 2009 ONCA 722 (Ont. C.A.). Therefore, I must determine if the costs that Red Quest seeks on a partial indemnity basis are fair and reasonable.
[11] Trade Capital did not submit a bill of costs for the court to compare with the costs that Red Quest seeks. The costs submissions made by Trade Capital focus on the issue of entitlement, not quantum. Consequently, it is difficult to determine what Trade Capital might have expected to pay as the unsuccessful party. I am therefore left to determine what a fair and reasonable amount for Trade Capital to pay would be, having regard to the information contained in Red Quest’s submissions.
[12] Red Quest has compartmentalized its claim for costs into the fees incurred by Mr. Borg-Olivier and Ms. Shore for the adjournment on May 20, 2016, the refusals and undertakings motion on June 23, 2016, and the fresh evidence motion on July 27, 2016. The claim for costs seeks recovery for Mr. Borg-Olivier’s time at the rate of $275/hour against his actual rate of $550/hour, or 50% of his actual rate. Red Quest seeks to recover Ms. Shore’s time at the rate of $200/hour, against her actual rate of $425/hour, which is less than 50% of her actual rate. On the fresh evidence motion, Red Quest also seeks to recover the time of a student at the rate of $60/hour against the actual rate of $200/hour, which is less than 1/3 of the actual rate charged for the student’s time. I find all rates claimed for Mr. Borg-Olivier, Ms. Shore and the student to be reasonable under all of the circumstances.
[13] It is clear from the bill of costs that Mr. Borg-Olivier incurred most of the time for the appearance on May 20, 2016. He claims 12.7 hours, which includes inter-office communications, communications between counsel, reviewing motion materials and preparation time to argue the underlying motion to vary as the only motion before the court that day. I am granting him 4 hours for the actual attendance in court and for travel time to and from Brampton as costs thrown away. All other costs incurred by Ms. Shore and himself for communications, reviewing motion materials and preparing for the motion to vary are carried over to the actual hearing and disposition of that motion.
[14] The time expended for the preparation of materials and to attend court to oppose the refusals motion I find to be reasonable for a motion of that nature. Due to the number of refusals involved and the complexity of reviewing the refusals against the issues on the motion to vary, I am prepared to allow all of the time claimed in the amount of $192.50 for Mr. Borg-Olivier, and $4,040 for Ms. Shore.
[15] Ms. Shore argued the fresh evidence motion on July 27, 2016. Although Ms. Shore may have prepared to make submissions on that motion, the student’s time of 19.6 hours is also claimed, likely for preparation of materials and all research. Mr. Borg-Olivier would have reviewed the final factum and case law as the supervising lawyer. I am prepared to allow Mr. Borg-Olivier’s time of 1.4 hours to recognize the important role that a supervising lawyer plays on a file, and 6 hours of preparation time along with 6 hours of court time for Ms. Shore to argue the motion. I am allowing only 10 hours for the student as neither a client nor an adverse party should pay for that part of the research and preparation of materials that is in part of value to a student’s education and training. The time I have allowed is sufficient to recognize the contribution made by the student to the final product.
[16] Therefore, Red Quest is entitled to costs as follows:
- Adjournment: $1,100.00
- Refusals and Undertakings Motion: $4,232.50
- Fresh Evidence Motion: $3,385.00
- Disbursements: $ 892.50 Total: $9,610.00
[17] 245 claims costs on a partial indemnity basis of $7,514.50. It is submitted on behalf of 245 that the attendance of counsel was necessary on all 3 days as the issues raised on the motions directly affected 245’s interests because of the underlying motion to vary. 245 argues that the fresh evidence motion related to the admission of 245’s bank statements, which could affect its interests on both the underlying motion and in the litigation generally.
[18] The costs outline submitted by 245 describes the time to prepare for and to attend court on each occasion. There is no time claimed to prepare materials as 245 did not file any materials, prepare a factum or conduct any research with respect to the issues the court was to adjudicate.
[19] I further observe that Mr. Parley and Ms. Robinson both claim time for the preparation for and attendance at court on May 20, 2016 when they would have known, even on short notice, that Trade Capital would be seeking an adjournment. I think it is fair that time for only one counsel be awarded as there was a possibility that the motion to vary would have proceeded had the adjournment been denied, and Mr. Parley rightly should have to be there. I am therefore allowing his costs at 11.5 hours at $200/hour against his actual rate of $520/hour for that day.
[20] I further allow Mr. Parley’s time of 6.3 hours at $200/hour for preparing for and attending on June 23, 2016 for the refusals motion.
[21] Ms. Robinson attended for 245 on the fresh evidence motion on July 25, 2016. Since many of the arguments to be made on the fresh evidence motion would be made by Red Quest, I am allowing her 5 hours at $150/hour against her actual rate of $330/hour for attendance in court and for travel to and from Brampton.
[22] I am therefore awarding costs to 245 on a partial indemnity basis in the amount of $4,310 for all three attendances.
[23] Order to go accordingly.
Emery J.
Date: October 14, 2016
CITATION: Trade Capital Finance Corp v. Cook, 2016 ONSC 6446
COURT FILE NO.: CV-15-2110-00
DATE: 2016-10-14
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
RE: TRADE CAPITAL FINANCE CORP., Plaintiff
- and - PETER COOK also known as PETER WILLIAM COOK, MARC D’AOUST also known as JEAN MARC D’AOUST, THOMAS BARKER also known as THOMAS RICHARD BARKER (personally and carrying on business as LC EXCHANGE, GLOBAL MEDICAL and GREENLINK CANADA GROUP), ROCKY RACCA, BRUNO DIDIOMEDE also known as BRUNO DIAIOMEDE, ALAN KEERY also known as ALAN JOHN KEERY, CHRIS BENNETT JR. also known as CHRIS BENNETT also known as CHRISTOPHER BENNETT (personally and carrying on business as CJR CONSULTING), TODD CADENHEAD, DAYAWANSA WICKRAMASINGHE, BONNY LOKUGE also known as DON BONNY LOKUGE, VIRTUCALL INC., VIRTUCALL INTERNATIONAL LLC, DEBT RESOLVE-MORTGAGE FUNDING SOLUTIONS INC. carrying on business as DEBTRESOLVE INC., THE CASH HOUSE INC., 1160376 ONTARIO LIMITED operating as THE CASH HOUSE, 2242116 ONTARIO INC. carrying on business as SUPERIOR MEDICAL SERVICES INC. and SUPERIOR MEDICAL SERVICES, CARLO MR. DE MARIA also known as CARLO VINCE DE MARIA also known as CARLO VINCENT MR. DE MARIA also known as CARLO VINCENZO MR. DE MARIA, MATTEO PENNACCHIO, FRANK ZITO also known as FRANCESCO ZITO, SIMONE SLADKOWSKI, JOBEC TRADE FINANCE INC., 1461350 ONTARIO INC., 2299430 ONTARIO INC., WF CANADA LTD., JOBEC INVESTMENTS RT LTD., GREEN LINK CANADA INC., 2339989 ONTARIO INC., 2252364 ONTARIO INC., 2224754 ONTARIO LTD., 6980023 CANADA INC. operating as LIVING BENEFITS and MILLWALK ENTERPRISES INC., OAK HILLS WATER DURHAM INC., JOSHUA COOK, ELIZABETH COOK, REBECCA COOK, MARK PINTUCCI, MARCO SANTONATO also known as MARC SANTONATO and NEW ERA RESOLUTIONS & CONSULTING INC., Defendants
COSTS ENDORSEMENT
Emery J.
Released: October 14, 2016