CITATION: Vertamin Inc (Re), 2017 ONSC 3121
COURT FILE NO.: BK-33-1935208
DATE: 2017/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF VERTAMIN INC.
OPERATING IN THE CITY OF OTTAWA IN THE PROVINCE OF ONTARIO
COUNSEL: Percy Ostroff, Counsel for the Applicant Trustee in Bankruptcy
Alyssa Tomkins, Counsel for Vertamin Inc.
Roger P. Simard, Counsel for le Bureau de Syndic Pierre Lemieux Inc.
HEARD: By Written Submissions
R. SMITH J.
COSTS Decision
[1] The Trustee was successful in obtaining an order annulling Vertamin’s Proposal in Bankruptcy and in responding to the Debtor’s cross-motion for permission to sue for $10 million dollars. The Trustee seeks costs of $82,958.01 recoverable as a priority claim against the funds it holds in the failed Priority.
[2] Vertamin has not made any submissions on costs.
Factors
[3] The factors to be considered when fixing costs are set out in Rule 57 of the Rules of Civil Procedure and include in addition to success, the amount claimed and recovered, the complexity and importance of the matter and the principle of proportionality, the conduct of any party which unduly lengthened the proceeding, whether any step was improper, vexatious or unnecessary, or taken through negligence mistake or excessive caution, a party’s denial or refusal to admit anything, any offer to settle, the principle of indemnity, scale of costs, hourly rate claimed in relation to the partial indemnity rate set out in the Information to the Profession effective July 1, 2005, the time spent, and the amount that a losing party would reasonably expect to pay.
[4] The Trustee was completely successful on its motion and the cross-motion. The matter was complex and involved a claim of $10 million dollars against the Trustee, which indicated that the matter was important to the parties.
[5] The Trustee’s full legal costs would ordinarily be recoverable as a preferred claim under S. 136(1)(b)(ii) and (iii) of the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3). However, the Trustee is unable to recover costs against the undischarged bankrupt as would ordinarily be the case.
Disposition
[6] Given the factual complexity, the unfounded allegations of professional negligence and conduct against the Trustee and the fact the Trustee would ordinarily recover its full costs, and the amounts sought were within the expectations of the losing party. The Trustee’s costs are fixed at $82,958.01 on a full indemnity basis.
[7] The Trustee is entitled to recover $82,958.01 under S. 136(1)(b)(ii) and (iii) as a priority claim against the funds that it holds in the failed Proposal.
Justice Robert Smith
Released: 2017/05/19
CITATION: Vertamin Inc (Re), 2017 ONSC 3121
COURT FILE NO.: BK-33-1935208
DATE: 2017/05/19
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF VERTAMIN INC.
OPERATING IN THE CITY OF OTTAWA IN THE PROVINCE OF ONTARIO
Percy Ostroff, Counsel for the Applicant Trustee in Bankruptcy
Alyssa Tomkins, Counsel for Vertamin Inc.
Roger P. Simard, Counsel for le Bureau de3 Syndic Pierre Lemieux Inc.
Costs Decision
R. Smith J.
Released: 2017/05/19