CITATION: Levine v. 1751060 Ontario Inc., 2016 ONSC 6481

COURT FILE NO.: CV-14-10413-00CL

DATE: 20161018

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jay Levine, Mark Levine and Sara Levine Petroff v. 1751060 Ontario Inc. and Irving Kumer

BEFORE: Justice Swinton

COUNSEL: John J. Adair, for the Applicants

Ronald Moldaver, Q.C., for the Respondents

DATE HEARD: in writing

E N D O R S E M E N T

The Purchase Price

[1] The respondents do not take issue with the calculation of the purchase price resulting from Mr. Hacker’s revised valuation figure of $1,180,000 and the applicants’ correction of the amount to be deducted as paid of $179,194. Therefore, I find that the purchase price payable in accordance with my decision of June 29, 2016 is $1,000,806.

Dividends

[2] The applicants’ entitlement to dividends was determined in my earlier decision.

Costs

[3] The applicants seek costs on a substantial indemnity basis. In my view, it is not appropriate to award costs on a substantial indemnity basis. There was no Rule 49 offer by the applicants. While Mr. Kumer’s conduct did cause these proceedings to be prolonged, I would not characterize his conduct as so reprehensible as to warrant a punitive costs order.

[4] The applicants seek fees on a partial indemnity basis in the amount of $67,268.83 plus HST for a total of $76,013.77. While the respondents argue that this amount is excessive, given the amount that their counsel seeks in fees, I find that the amount is fair and reasonable and within the reasonable expectation of the losing party. The applicants’ fees are understandably higher, given their onus to prove their case. Moreover, they retained an expert, which required time for counsel to obtain the report and to prepare for trial. I would not second guess counsel on the hours spent in this case. I also note that the amount sought is proportional to the amount sought and obtained at trial.

[5] While the respondents argue that the disbursement of $38,517 for the expert fees of Mr. Hacker is excessive, they have not suggested why or what amount would be appropriate. I accept the disbursement as fair and reasonable in the circumstances of this case, given the need for Mr. Hacker to prepare the report, review Mr. Kumer’s calculations and his preparation and appearance at trial.

[6] Therefore, I order costs of $76,013.77 for fees plus disbursements of $43,115.69 for a total of $119,129.46.

Draft judgment

[7] I have not signed the draft judgment submitted by Mr. Adair. The judgment date should reflect the date of this present decision, and paragraph 1 should accurately reflect the revised calculations.

Swinton J.

DATE: October 18, 2016