ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Bearsfield Developments Inc. and Mod-Aire Homes Limited
Plaintiffs
– and –
Debra Ann McNabb
Defendant
COUNSEL:
David Debenham, for the Plaintiffs Applicants on this motion.
Benoit Duchesne, for the Defendant Respondent on this motion
HEARD: 2016-11-17
COSTS decision
R.L. Maranger J.
1This was a motion brought by the plaintiffs/applicants for a summary judgment. The moving party requested that a conveyance of RRSPs made by the defendant on April 12, 2012 in the amount of $206,587.15 be set aside pursuant to the Fraudulent Conveyances Act R.S.O. 1990, c. F.29M.
2On October 4, 2016 the court released its decision and the plaintiff was entirely successful in obtaining a summary judgment and is entitled to costs. The total amount they have claimed for costs including disbursements on a partial indemnity basis was $128,833.83, and on a substantial indemnity basis $145,509.94.
3These amounts are excessive in the extreme.
4The primary disbursement being claimed is a $69,060.20 expert report from an accounting firm that was not relied upon or ever referred to when the motion was argued. I would not allow the disbursement in the circumstances of this case for the following reasons:
The facts in this case did not require an expert report the report was not referred to at the motion.
The decision to grant a summary judgment never relied on or referred to this report.
The amount disbursed for the report was excessive and unforeseen to the defendant.
5In terms of the appropriate amount for fees and disbursements in the circumstances of this case, counsel representing the defendant suggested the all-inclusive sum of $31,000 as a reasonable award for costs, I agree and in doing so have considered:
Rule 57.01 of the Rules of Civil Procedure particularly: (a), (c),(d),(e) and (f).
The Ontario Court of Appeal decision of Boucher v. Public Accountants Council for the Province of Ontario et al. 2004 CanLII 14579 (ON CA), 2004, 71 O.R. (3d) 291 at p. 299 where the Court indicated as follows:
Overall as this Court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding rather than an amount fixed by the actual costs incurred by the successful litigant.
- The bill of costs filed by each party.
6Therefore I order cost fixed in the all-inclusive sum of $31,000 payable by the defendant to the plaintiff forthwith.
Mr. Justice Robert L. Maranger
Released: November 25, 2016
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.CITATION: Bearsfield Developments Inc. v. McNabb., 2016 ONSC 7375
COURT FILE NO.: 15-64271
DATE: 2016-11-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Bearsfield Developments Inc. and Mod-Aire Homes Limited
Plaintiffs
– and –
Debra Ann McNabb
Defendant
decision on costs
Maranger J.
Released: November 25, 2016