Wilfred v. Dare et al., 2017 ONSC 2718

CITATION: Wilfred v. Dare et al., 2017 ONSC 2718

COURT FILE NO.: CV-15-1101-00CL

DATE: 20170501

SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Carolyn Ruth Dare Wilfred and 960777 Alberta Ltd., Plaintiffs

AND: Bryan Robert Dare, Anaz Ltd., Graham Neal Dare, Nazca Investments Ltd. and Serad Holdings Limited, Defendants

BEFORE: Conway J.

COUNSEL: John P. Ormston and Lindsay M. Moffatt, for the Plaintiffs

John J. Chapman and Manav Singhla, for the Defendants

HEARD: In writing

COSTS ENDORSEMENT

[1] Carolyn Dare Wilfred and her holding company 960777 Alberta Ltd. (collectively, “Carolyn”) sought relief pursuant to the oppression remedy in s. 248 of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16. Specifically, Carolyn sought a court-ordered sale of her shares of Serad Holdings Limited to the defendants. For reasons released on March 21, 2017, I dismissed Carolyn’s action.[^1]

[2] The defendants now seek their costs on a partial indemnity basis in the amount of $333,872, inclusive of disbursements and taxes.

[3] Carolyn does not dispute that the defendants are entitled to their costs. However, she submits that the hours spent by defence counsel are excessive (350 hours more than Carolyn’s counsel).[^2] She notes that the defendants’ counsel staffed their file with eight individuals compared with three on Carolyn’s side. Her own partial indemnity costs, as set out in her bill of costs, are $145,243.

[4] Carolyn acknowledges that the defendants’ costs are higher given that their counsel took the lead on drafting the Partial Agreed Statement of Facts and Joint Book of Documents but she submits that this does not justify such a significant number of additional hours. Carolyn submits that the defendants’ costs should be discounted by 20% and that a reasonable costs award would be $267,098.

[5] The overriding principle in awarding costs 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: Boucher et al. v. Public Accountants Council for the Province of Ontario et al. (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[6] This was a shareholder dispute involving the family-owned Dare Foods business. Carolyn sought a court-ordered buyout in the millions of dollars. She made certain allegations of impropriety (that were conceded during the course of the litigation) and unfairness in her family’s treatment of her as a shareholder. She could reasonably have expected that the defendants would expend significant resources in fighting this litigation. However, I agree that defendants’ costs are high, even considering their counsel’s time spent in preparing the joint trial materials.

[7] Overall, taking into account the factors in Rule 57.01(1), I consider that a fair and reasonable costs award is $275,000, inclusive of disbursements and taxes, and I exercise my discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43 accordingly.

[8] The defendants submit that because Carolyn may not have the funds available to pay a costs award immediately, costs should be awarded to Serad Holdings Limited and deducted from future dividend payments to Carolyn (up to a maximum of 20% of the dividend in question). Carolyn did not respond to this proposal in her costs submissions. I decline to order any such arrangements. The normal rule is that costs are payable in 30 days. If the parties wish to make any alternate arrangements as between themselves, they are free to do so.

[9] I order that the plaintiffs pay costs to the defendants on a partial indemnity basis in the amount of $275,000, inclusive of disbursements and taxes, and that such costs are payable within 30 days, subject to any agreement that may be made among the parties.

Conway J.

Date: May 1, 2017

[^1]: Wilfred v. Dare et al., 2017 ONSC 1633.

[^2]: The defendants’ counsel spent 879.6 hours on the file. Carolyn’s counsel spent 517.7 hours.```