COURT FILES NO.: 12-CV-456667; 12-CV-456478 & 13-CV-472420
MOTION HEARD: 20160908 & 20160909
COSTS REASONS RELEASED: 20170817
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
CAMPOLI ELECTRIC LTD. Plaintiff
- and-
GEORGIAN CLAIRLEA INC., RESIDENCES OF CLAIRLEA GARDENS INC., ANTHONY MAIDA, FRANK MAIDA, and GENE MAIDA Defendants
COURT FILE NO.: 12-CV-456478
AND BETWEEN:
E-M Air systems inc. Plaintiff
- and-
GEORGIAN CLAIRLEA INC., RESIDENCES OF CLAIRLEA GARDENS INC., ANTHONY MAIDA, FRANK MAIDA, GENE MAIDA, and LORETTO CIRCOSTA Defendants
COURT FILE NO.: 13-CV-472420
AND BETWEEN:
tRIUMPH aLUMINUM AND sHEET mETAL iNC. Plaintiff
- and-
GARY DIMITROU, GEORGIAN CLAIRLEA INC., GENE MAIDA, ANTHONY MAIDA, and FRANK MAIDA Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Emilio Bisceglia Fax: (905) 695-5201 -for the Plaintiff Campoli
William Ribeiro Fax: (416) 533-3114 -for the Plaintiff Triumph Aluminum
Milton A. Davis Fax: (416) 941-8852 -for the Defendants Anthony, Frank him and Gene Maida
Howard Manis Fax: (416) 364-1453 -for the Trustee
COSTS REASONS RELEASED: August 17, 2017
Reasons for Decision re Costs
[1] My reasons on the main motion heard several months ago (found at 2017 ONSC 2784) began by observing that building a condominium project is far from an easy process. It would it would appear that neither is the resolution of an appropriate costs award in the complex matrix of issues involved in these cases.
I. Approach to Decision
[2] In setting out my decision, I note that the main reasons were “complex and extensive”. In the circumstances of these cases, if I refused to grant the relief sought by the moving parties, some of the legal actions involved would effectively be at an end.
[3] Conversely, if I grant the leave there will be extensive examinations, arguments and ultimately trials which will likely turn on documentation generated more than eight years ago.
[4] Ultimately I turned to the guidance of Rule 1 with respect to the interpretation of of the Rules generally:
General Principle
(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
Matters Not Provided For
(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.
[5] Once again, in coming to my conclusion on this occasion I adopt the guidance of Justice D.M. Brown in Abrams v. Abrams, 2010 ONSC 2703:
“Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the 'just, most expeditious and least expensive determination of every proceeding on its merits.’ ”
[6] In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis was discussing the test for summary judgment, but what she had to say is thematically applicable to lifting these stays. At paragraphs 27 and 28 of her judgment atthe Supreme Court of Canada, she stated:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible - proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [my emphasis]
[7] Rule 1.04, requires that the court should strive to have matters resolved on the merits. Hryniak encourages an approach that avoids lengthy trials. In my view there is no doubt that, as well, in construing the rules it is necessary to apply appropriate equitable principles.
II. The Plaintiffs’ Actions and the Present Motions
[8] In total the moving parties claim damages well in excess of one million dollars. Campoli supplied electrical services and materials to the Project pursuant to a contract with Georgian Clairlea, Campoli rendered unpaid invoices for the sum of $515,869.
[9] EM Air supplied heating and ventilating systems, including labour and materials, to the Project pursuant to a contract with Georgian Clairlea. EM Air rendered invoices for the sum of $416,788.37. Triumph Aluminum and Sheet Metal Inc. asserts that it is owed $175,753.
[10] Thus their proportionate share of the total claims would seem to be:
Campoli $515,869. 46.54%
EM Air $416,788 37.6%
Triumph $175,753 15.86%
TOTAL $1,108,410 100%._
[11] My reasons noted at paragraph 22, that “in broad strokes” the arguments made before me in opposition to the plaintiffs’ motions included these assertions:
• These actions are over four years old. They concern issues that the Plaintiffs settled in 2009. They signed Minutes of Settlement. The Minutes were a ''full settlement" of their lien claims. They did not preserve the breach of trust claims they are making in these actions.
• The Plaintiffs also settled all claims against the corporate Defendant. Consequently, the Construction Lien Act prevents the Plaintiffs from making any claim for breach of trust against the Maidas. So does the fact that the Plaintiffs have not had the bankruptcy stays against the corporate Defendant lifted.
• In addition, the actions are statute barred under the Limitations Act, 2002. They are also an abuse of process, or barred by estoppel, because the Plaintiffs settled their claims seven years ago (one Plaintiff gave a final release five years ago).
• There is no genuine issue requiring a trial. The Plaintiffs cannot prove breach of trust under the Construction Lien Act. Even if they could, their claims could not survive the Maidas' bankruptcies.
III. Consideration of an Appropriate Approach to Lifting of Stays
[12] The statutory provisions for a the lifting of a BIA stay require an application to the court for a declaration that those sections no longer operate in respect of that creditor. In response the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied
(a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or
(b) that it is equitable on other grounds to make such a declaration.
[13] What is clear from the case law that there ought to be no “automatic” granting of orders lifting the stays.
[14] Justices Abella, Charron and Sharpe, then of the Ontario Court of Appeal explained Sec. 69.4 of the BIA in Re:Ma, 2001 24076 (ON CA), 143 O.A.C. 52; 24 C.B.R. (4th) 68;104 A.C.W.S. (3d) 261; 2001 24076:
“2 In our view there is no requirement to establish a prima facie case and no inconsistency in the case law. We do not agree that Bowles v. Barber imposes a prima facie case requirement. More importantly, that requirement is not imposed by the statute. Under s. 69.4 the court may make a declaration lifting the automatic stay if it is satisfied (a) that the creditor is "likely to be materially prejudiced by [its] continued operation" or (b) "that it is equitable on other grounds to make such a declaration." The approach to be taken on s. 69.4 application was considered by Adams J. in Re Francisco (1995), 1995 7371 (ON SC), 32 C.B.R. (3d) 29 at 29-30 (Ont. Gen. Div.), a decision affirmed by this court (1996), 1996 10233 (ON CA), 40 C.B.R. (3d) 77 (Ont. C.A.):
In considering an application for leave, the function of a bankruptcy court is not to inquire into the merits of the action sought to be commenced or continued. Instead, the role is one of ensuring that sound reasons, consistent with the scheme of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, exist for relieving against the otherwise automatic stay of proceedings.
3 As this passage makes clear, lifting the automatic stay is far from a routine matter. There is an onus on the applicant to establish a basis for the order within the meaning of s. 69.4. As stated in Re Francisco, the role of the court is to ensure that there are "sound reasons, consistent with the scheme of the Bankruptcy and Insolvency Act" to relieve against the automatic stay. While the test is not whether there is a prima facie case, that does not, in our view, preclude any consideration of the merits of the proposed action where relevant to the issue of whether there are "sound reasons" for lifting the stay. For example, if it were apparent that the proposed action had little prospect of success, it would be difficult to find that there were sound reasons for lifting the stay.” [my emphasis]
[15] In my view based upon the entirety of issues in this case I was satisfied that the plaintiffs have little prospect of success, based upon a number of the defences evaluated throughout my reasons. Any one of which would be fatal to the plaintiffs’ case.
[16] In the present case I had no sense from the evidence placed before me that any of the Maidas deliberately misappropriated trust money for their own use. As a consequence I adopted the submission of the Defendants counsel in this regard:
“83. The Plaintiffs cannot show that the Maidas are guilty of “fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity". If they can show it, they have not done so on this motion, although they are obliged to.”
IV. Jurisdiction of a Master to Grant Summary Judgment
[17] I considered this issue in Section XXXI of my main reasons. There I quoted at length the 2014 decision of Master C.U.C. MacLeod, as he then was considered the impact of the amendments to the Rules of Civil Procedure dealing with obtaining summary judgments in Pammett v. 1230174 Ontario Inc.;2014 ONSC 2447.
[18] In particular, I held it in coming to my conclusions I adopted my colleague’s approach to my duty as he set out in Pammett:
35 I have taken the time to outline these other processes because much of the decision in Hryniak deals with them. But it is important for purposes of this motion to focus on Rule 20.02 (2) (a). The Supreme Court also mandates a robust and fearless application of that portion of the rule. It is not appropriate to simply defer the question to a trial judge if the evidence does not establish that the party having the onus to prove something has a reasonable prospect of doing so.
V. Recapitulation
[19] I therefore held that the motion for summary judgment could be determined under Rule 20.04 (2) (a) and there is therefore no reason to engage either of the other processes now contemplated by the rule. The evidence before me demonstrates that there is no air of reality to the argument that the cause of action against these defendants was only discoverable two years before the action was commenced. If there was an existing trust obligation, the case law mandates that the time period for bringing the case expired long before the action was commenced. In any event I am not convinced that there is any meaningful evidence of any misappropriation of funds by the Maidas.
[20] Moreover, I was convinced that the parties with their eyes wide open, entered into a clear written agreement to give up their Lien Act entitlements in exchange for the prospect of a later recovery of their arrears by way of the postponed mortgage and an opportunity to be paid on an ongoing basis for work to complete the Project. It would be inappropriate and in my view inequitable to permit the plaintiffs to ignore the bargain made by them.
[21] Counsel for the Defendants submitted that if the stays are lifted (or in Frank's case, reinstated), the Plaintiffs' actions “should in any event be dismissed summarily.” Amongst the grounds he asserts are the following which I find meritorious:
• The limitation period expired in 2011.
• The CLA requires the Plaintiffs to prove that Georgian was in breach of trust and that the Maidas controlled Georgian and that that assented to or acquiesced in a breach of trust. They Plaintiffs have not proved any of this. Their claim against Georgian is stayed. The Plaintiffs have taken no steps to lift that stay.
• There is no genuine issue requiring a trial. There was no breach of trust.
• The actions are an abuse of process or barred by estoppel.
• The Plaintiffs claims cannot survive the Maidas' bankruptcies, under sec. 178(1) of the BIA.
[22] I accepted and adopted these grounds. Any one of which would likely be sufficient to justify my conclusions.
VI. Results of Motions
[23] Rule 1.04, requires that the court should strive to have matters resolved on the merits. Hryniak encourages an approach that avoids lengthy trials.
[24] My rough approximation of the total height of the motion records and materials filed before me approximated 4 ½ feet. In light of that voluminous authorities and the combined advocatory effort , I felt it appropriate to give fair consideration to all the arguments made, and to set out the legal background against which I was required to make my determinations.
[25] With respect to costs, the defendants argued that they were entitled to a punitive costs order and justified the request on this basis:
“The Plaintiffs have made unfounded fraud allegations. They have flouted the Settlement. They have needlessly prolonged this litigation. EM Air and Campoli have been exceptionally obstructive on examinations, wasting the parties' time and money.
[26] While I appreciated the basis for seeking such costs award, I remain satisfied that awarding partial indemnity costs against the moving parties is the appropriate result.
[27] Ultimately, the unduly long reasons came down to these short determinations:
The motions seeking the lifting of the stays regarding Eugene and Anthony Maida under the BIA of actions: No. CV-12-456478 (the "EM Air Trust Action"); No. CV-12-456667 (the“Campoli Trust Action” and No. CV-13-472420.(the “Triumph Trust Action”) are hereby dismissed with costs
The motion to reinstate a stay of those actions as against Frank Maida is dismissed.
The motion of Frank Maida to have the above three actions dismissed as against him is granted. Having considered all the circumstances in this case, that dismissal Order is made without costs.
VII. Costs Determination
[28] And at the outset I deal with the entitlement of counsel to any costs with respect to the representation of Frank Maida. In my judgment, I determined to have the three actions dismissed as against him. However, having considered all the circumstances in this case, that dismissal Order was made on a without cost basis..
[29] His counsel has confirmed to the Court it is written cost submissions that the Bill of Costs presented “specifically excludes all expenses incurred respecting Frank Maida, whose involvement in the project and, thus, in these proceedings, has been limited. In particular, the Bill excludes all costs regarding the preparation for and attendance at Frank Maida's discovery, as well as the preparation of his evidence and attendance at his cross-examinations for these motions.”
[30] With respect to the other two brothers, the bill of costs submitted, seeks the total sum from the plaintiffs of $166,585.36 (including disbursements and taxes.
[31] I come to my consideration of that amount from the perspective that it seemed to me from the outset that the claims asserted by the moving parties were likely to fail.
[32] Both sets of counsel prepared in depth with respect to a large number of areas, the law, including the construction lien act, the bankruptcy act, the Rules of Civil Procedure, together with a number of judicial decisions.
[33] The issues on the motions were not without difficulty and I expect my decisions may well be under appeal.
I remain satisfied that my awarding partial indemnity costs was the appropriate order in all the circumstances. It does seem odd to find all three brothers making proposals in bankruptcy, but still being in a position to aggressively litigate these issues. However, my view, the risk of the alleged debts surviving a discharge as a result of section 178 of the BIA, clearly justified their approach to this litigation.
VIII. Plaintiffs’ Arguments on Costs
[34] Both Counsel provided detailed submissions on behalf of all three plaintiffs in opposition to the Maidas’ request for a total costs award in excess of $165000. In part, counsel for E-M Air Systems Inc. and Campoli Electric Ltd. submitted:
“3. In the circumstances, it is respectfully submitted that Anthony and Gene Maida should not be entitled to costs of the actions in their entirety. They sought the protection of a stay under the BIA, and thus it is improper for them to claim costs of the actions.
It is disingenuous to argue that if the Maidas had proceeded with their actions they would have been “entitled to costs of the entire actions”. It is disingenuous, in that they cannot take advantage of the stay under the BIA and at the same time seek relief as if there was no stay.
A costs award that deals only with the motions to lift the stays is in keeping with the Master's decision and jurisdiction. It is also consistent with the Master's decision in relation to Frank Maida where no costs were ordered.
Therefore, the only costs that the Master should consider from the Maidas' Bill of Costs are those found under the following headings:
(a) Motion re Timetable/ Vary Order of Master McAfee / Lift Stays/ Summary Judgment;
(b) Cross-examinations/ Undertakings;
(c) Hearing of Motion; and
(d) Cost Submissions. (collectively "Motion Costs").
It is thus respectfully submitted that all the other costs are in relation to the actions, and thus are not properly sought by the Maidas or permitted by the Master's Decision.”
[35] Further, counsel for Triumph observes in his submissions:
“18. Even though the Maidas did not comply all timeframes referred to in this timetable, they did consent to an Order providing for these steps. Nothing prevented the Maidas from requesting to bring their motion for summary judgment before these steps were in fact completed. The fact that they brought that motion after these steps were complete was solely a result of their own doing. They consented to the Order that provided for these steps in the litigation, and willingly took those steps before bringing their motion for summary judgment. They could have brought their motion for summary judgment before taking all those steps. Nothing prevented them from doing so. Their request that Campoli, E-M Air and Triumph pay the costs of the steps that pre-date the motions brought in the spring of 2016 (motion to lift stays by the trades) and summer of 2016 (cross-motion for summary judgment by the Maidas), is not fair or reasonable.
Triumph respectively submits, and your Master has already ruled in paragraphs 230 and 233 of the Decision, that costs should only be limited to the motion to lift the stays, and nothing further.
Also, Triumph notes that some of the time expended by Fogler Rubinoff s office ....is time that was expended on issues that related to E-M Air's action and not Triumph. The Order of ... March 23, 2016 was required to set aside a Registrar's administrative dismissal of the E-M Air action and not the Triumph action.”
[36] Regardless of my ultimate decision I do accept the submissions of Triumph’s counsel regarding the extent of the potential costs liability of his client:
- Finally, Triumph submits that costs awarded against Campoli, E-M Air and Triumph should not be awarded jointly and severally but should only be awarded severally against each of them, divided on a 1/3 basis for each, or should be awarded severally divided in proportionate amounts to the outstanding amounts owed to each of these trades …. It would be unfair and unreasonable to saddle any one of the trades with liability for the entire costs award. If a joint and several costs order was made, and if Campoli or E-M Air failed to pay, then Triumph would be required to pay the whole costs order. This cannot be a fair and reasonable result when Triumph's amount outstanding of $175,793.00 is only approximately 16% of the whole $1,131,449.00 outstanding amount to these trades ….
[37] Given the degree of involvement of Triumph in the argument of the motions and the size of its individual claim I agree that an application of proportionality limiting Triumph’s share of liability to about 16% of the final determination would be just and equitable in this case.
IX. Costs Submissions Of Anthony And Eugene Maida
[38] Counsel filed an extensive brief on behalf of the successful brothers. It read in part:
Anthony and Gene Maida should be entitled to their costs of these actions in their entirety. These long outstanding actions are now at an end. It follows that the costs award should comprise the actions as well as the Plaintiffs' failed motions.
A costs award that only accounted for the motions and not the entire set of actions would overlook entirely the breadth of your analysis that led to your key findings, i.e. that the Plaintiffs' actions were doomed to fail, and that they subjected the Maidas to undue expense and stress.1
As the Reasons for Decision rightly recognized, these proceedings were unusual, complex, and voluminous.
The Plaintiffs claimed well over one million dollars for work completed over eight years
On these motions, they alleged breach of trust. They alleged fraud, without foundation. They took aggressive positions, without foundation….
In the result, the Plaintiffs were wholly unsuccessful. The motions to lift the stays regarding Eugene and Anthony were dismissed, with costs. This ended the proceedings against them. The motion to reinstate the stay as against Frank, as well as the action against him, were dismissed without costs.
Your Reasons make clear that the termination of these proceedings was not corollary to your orders. They were the intended result, based on the circumstances and your findings.”
[39] I agree that the quantum of costs should reflect the summary judgment nature of these motions. These motions were not intermediary steps. They were dispositive. They demanded the sustained work and attention of the Maidas and their counsel. The stakes were significant.
[40] I have also considered their counsel’s submission that while I declined to make a punitive costs order, the Court ought not to allow some of the plaintiffs’ conduct to go wholly unsanctioned.
[41] Relying upon Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ONCA) counsel asserts:
“Otherwise, the Maidas will bear the costs of the Plaintiffs' transgressions, and litigants will be undeterred from objectionable behaviour. This would not be a "fair and reasonable" calculation of costs in this particular proceeding, under the Boucher principles.
X. How Partial an Indemnity?
[42] Counsel on both sides endeavored to persuade me to adjust the quantum to which the plaintiff was entitled by virtue of my “partial indemnity” award.
[43] Counsel for the Maidas submitted:
“11. That the costs award, although on a partial indemnity scale, should be at the higher end is underscored by these key findings that you made:
a) The Plaintiffs failed to establish any misapplication of funds by the Maidas. You found their evidence contradictory, lacking documentary support, and unsupportive of their assertions that project money was paid to any party that was not a creditor with a legitimate entitlement to payment.
b) The Plaintiffs misconstrued the requirements of the Construction Lien Act respecting directors' and officers' liability for breach of trust. They attempted to tum the Maidas into guarantors of the corporation's liability. This is not what these provisions of the CLA seek to achieve. The Plaintiffs' losses on. the project were unfortunate (as were the Maidas'), but the Maidas had absolutely no trust liability.
c) The Maidas' payments to secured creditors, including bona fide mortgage holders, were authorised uses of funds and, clearly, not breaches of trust.
d) The sales costs Georgian incurred in selling units ( e.g. legal fees and sales commissions) are permitted under CLA and not breaches of trust.
e) The Trades Mortgage that the Plaintiffs took in place of their liens was intended to replace the entire debt to them. They knew they were giving up all project-related claims.
f) The additional documents the Plaintiffs later signed reflected their intent that the 2009 settlement was intended to be a complete resolution of any project-related claims.
g) Even if the Plaintiffs had valid claims, they did not bring their actions until after the two-year limitation had expired.
h) The Plaintiffs' conduct at the cross-examinations were an inappropriate way for a moving party to “lead trump” and/or to “put its best foot forward”
i) The Plaintiffs claims could not in any event survive the Maidas' bankruptcies, under sec. 178(1) of the BIA.”
[44] In response counsel for Campoli argued:
The suggestion that costs should be on a higher scale or quantum is also not consistent with the Master's decision that awarded costs on a partial indemnity basis. The costs award on a partial indemnity scale should not be at the higher end, as this would be re-litigating the issue that the Master has already ruled on. In other words, it would be to seek costs on a substantial indemnity basis when the Master has already held the costs should be on a partial indemnity basis.
It is trite law that costs on a partial indemnity basis are not the same as actual legal fees charged to the client.
The Court in determinating costs is bound to ascertain the quantum that is "a fair and reasonable sum to be paid by the unsuccessful litigant rather than any exact measure of the actual costs to the successfullitigant."In other words, assessing and fixing costs is not a mathematical exercise. See ... Colistro v.. TBay Tel 2013 ONSC 5952, [2013] O.J. No. 4593 (S.C.J.) at paras. 17 and 18 relying on Zesta Engineering Ltd. v. Cloutier, (2002 25577 (ON CA), 2002] O.J. No. 4495 (Ont. C.A.) and Boucher v. Public Accountants Council (Ontario), 2004 14579 (ON CA), [2004] O.J. No. 2634, 188 O.A.C. 201 (Ont. C.A.).
In relation to the Motion Costs, I have provided a breakdown and specific comments in a chart under Tab 2. In addition, I make the following brief submissions:
(a) It is respectfully submitted that the Maidas' Bill of Costs does not provide the necessary detail to allow the Master to fix the costs as requested.
(b) The Bill of Costs does not provide counsel's actual rates so it is not possible to take a position as to whether the "Partial Rate" sought is reasonable.
(c) The Bill of Costs does not include back-up documentation in terms of dockets to support the legal fees claimed.
(d) The Court is also usually disinclined to awarded costs for the preparation of costs submissions. See McDonald v. Anishinabek Police Services [2007] O.J. No. 424 (S.C.J.) at para. 30.
(e) The Bill of Costs does not distinguish in the Motions Costs as between the various parties, actions and motions. It is thus unclear what is being claimed. In the circumstances, the award of costs sought by the Maidas would be unfair as the Maidas seeks costs as against all three parties in one global amount.
(f) The Bill of Costs also does not distinguish between the motions that were the subject of the Master's decision of June 8, 2017 and other motions. For example, the Maidas are asking for costs in relation to EM Air's motion to set aside the Registrar's dismissal order of the action. Master Short granted this order given the fact that it was clear the action should not have been administratively dismissed. It should be pointed out that this was opposed by the Maidas. In any event, that motion involved the exchange of considerable motion materials, but was granted as requested by EM Air. There should not be any costs granted for that motion. As the Maidas have not separated out the costs for the motions heard with respect to the stays and summary judgment, it is difficult to ascertain what time was spent on it….
(g) The amount of time claimed by the Maidas strongly suggests that the time expended was unnecessary and involved duplication of the work because of the reliance on multiple counsel.
(h) The amount claimed for the Motion Costs are simply not reasonable as detailed in the analysis under Tab 2. The total amount claimed for legal fees in the three actions, including the Motion Costs, is $142,161.23. The total amount claimed for legal fees for the Motion Costs is $107,994.78. So the amount being claimed for work done in the actions, aside from the Motion Costs, is $34,166.45 ($142,161.23 minus $107,994.78). It is simply not credible to claim Motions Costs that are more than triple all the other costs claimed in the actions. In other words, the Maidas are claiming Motion Costs that far exceed the costs they say were spent in relation to the pleadings, affidavit of documents, examinations of discoveries and related steps for the three actions that were commenced in 2012 and 2013.
[45] Counsel for the plaintiff argues that for all the foregoing reasons, there is no basis for “the extraordinarily large costs sought by Anthony and Gene Maida. The submissions and evidence provided by the Maidas simply do not allow for any costs to be awarded.”
[46] The submissions then assert:
“In conclusion, the reasonable costs for the motions, given the fact that there are stays in place, is that there not be any costs awarded, as was the case with Frank Maida. Alternatively, costs payable by my clients should be $9,732.00, inclusive of disbursements and taxes, ….”
[47] In my view that sum fails to appropriately reflect my analysis of all the factors in this case. Incoming to an appropriate amount I have considered the case law relating to complicated cases.
XI. Hryniak and Costs
[48] In particular I find these submissions by counsel for the Maidas to be apt:
“12. Dismissing the Plaintiffs' motions was the most just and efficient way under the rules and the Hryniak principles for this Court to ensure that these actions were properly adjudicated.
It would have been a wasteful drain on the resources of the Court and the parties if the actions had been allowed to subsist.
If they had subsisted, however, and been dismissed later rather than now, the Maidas would have been entitled to costs of the entire actions. Anthony and Eugene Maida should not be precluded from seeking the same result simply because the Court's means to achieve this end differed. That would penalize parties who adhere to the Hryniak principles. It would reward obstruction and delay.
[49] Similarly I find merit in the observation that the plaintiffs prosecuted these actions as if they were one action with multiple plaintiffs seeking recovery from the same defendants, including the Maidas. Also, under Master Haberman's order of August 14, 2014 these actions proceeded under a common Discovery Plan. “ As a result, the costs of these proceedings, including these motions, cannot be divided and attributed separately to each matter discretely.”
[50] While I find portions of these arguments attractive, I am still not satisfied that the overall quantum sought by the successful parties of $166,585.36 is justified taking into account all the facets of this case.
XII. Disposition
[51] With respect to the amount claimed for disbursement by the Maidas I am allowing the full amount claimed,which together with HST, totals $24,425.12.
[52] However, with respect to the allocation of the legal fees. I first determined to reduce the total principal amount payable for fees to $90,000 plus HST.
[53] I then turn to the amounts claimed to be owed by each of the three defendants. The. Triumph claim was significantly less than those of the other two plaintiffs. Applying proportionality I believe that it is a fair solution to direct that the apportionment of costs be based on the amount of potential upside for each of the three parties.
[54] I also note thatby virtue of avoiding the application of section 178 of the BIA all three brothers have avoided the possibility of a substantial debt which would not released by their discharge from bankruptcy. That in and of itself has a meaningful value.
[55] As a consequence, the following chart sets out the obligations of each of the three unsuccessful parties to the successful Maida brothers. Each plaintiff will be responsible for its respective amount in the Total Share column.
[56] I conclude amounts payable on an individual basis to counsel for Anthony and Eugene are as follows:
| Claim Amount | %__ | Costs___ | Disbursements | Total Share | |
|---|---|---|---|---|---|
| Campoli | $515,869.00 | 46.54% | $ 47,331.18 | $ 11,366.99 | $ 58,698.17 |
| EM Air | $416,788.00 | 37.60% | $ 38,239.20 | $9,183.47 | $ 47,422.67 |
| Triumph | $175,753.00 | 15.86% | $ 16,129.62 | $3,873.66 | $ 20,003.28 |
| Total | $1,108,410.00 | 100.00% | $101,700.00 | $ 24,425.12 | $126,124.12 |
[57] Lastly, if I am found to be in error in awarding costs on the basis that these matters were effectively concluded and that only the costs of the motions ought to have been awarded, then it is my view I would have awarded a total of $60,000 with respect to the fees of the motions along with 2/3 of the overall disbursements to be allocated amongst the plaintiffs on the same percentage shares.
Released: August 17, 2017
Master D. E. Short
DS/ R.171C