COURT FILE NO.: CV-16-561325
DATE: 20180409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WAVERLY CORPORATE FINANCIAL SERVICES INC. and FARBER CFO RESOURCES INC.
Plaintiffs (Moving Party)
– and –
KANWAL INC. and SOCIÉTÉ EN COMANDITE INDUSTRIEL-LEGER
Defendants/Plaintiffs by Counterclaim (Responding Party)
– and –
WAVERLY CORPORATE FINANCIAL SERVICES INC.
Defendant by Counterclaim
Matthew B. Lerner, for the Plaintiffs
Amandeep S. Dhillon, for the Defendants
HEARD: Written Submissions
COSTS ENDORSEMENT
DIAMOND J.:
[1] At the conclusion of my Endorsement dated March 7, 2018, I requested that the parties exert the necessary efforts to try and resolve the costs of Farber’s motion for partial summary judgment. Those efforts were ultimately unsuccessful, and I have now received and reviewed the parties’ respective costs submissions served and filed pursuant to a fixed schedule.
[2] Farber was wholly successful on its motion, and seeks its costs of the motion (and indeed the action) in the all-inclusive amount of $46,990.67. This amount consists of both a costs component on a substantive indemnity basis, and a costs component on a full indemnity basis. Farber submits that Kanwal acted unreasonably in responding to Farber’s motion for partial summary judgment for the purposes of delay, only to then consent to the relief on the eve of the motion and argue for a stay of execution pending the determination of its counterclaim. Farber argues that it should be entitled to its costs on a substantial indemnity basis up to the date of its Offers to Settle (February 15-16, 2018) and its costs on a full indemnity basis thereafter as the result it achieved on its motion was more favourable that the terms of its Offers to Settle.
[3] For its part, Kanwal denies lengthening the proceeding and submits that it participated in good faith settlement efforts that simply failed to arrive at a resolution due to a dispute over the timing of payment. Kanwal further submits that the case law relied upon by Farber in support of its request for full indemnity costs was more concerned with abandoned defences of fraud rather than the effects of a consenting to judgment on the eve of a motion. Kanwal also takes issue with the number of hours charged by Farber’s solicitors and argues that the amount of costs sought is not proportionate to the amount of the judgment obtained.
[4] In my view, while I agree with Farber that it is entitled to its costs on a higher scale from the date of its Offers to Settle onward, on the record before me I am unable to reach the conclusion that Kanwal acted unreasonably for the sole purpose of delaying the motion or the action. This was a motion for partial summary judgment that parsed out Farber’s discrete claims for invoices rendered. The sole issue before me was whether to stay execution of that judgment, and I was not asked to determine whether Kanwal’s defences were “overly technical” as now argued by Farber. Even if the motion would have been successfully argued on its merits, that does not mean in and f itself that the defences raised never had merit and were frivolous.
[5] Farber is entitled to its costs on a partial indemnity basis up to February 15-16, 2018 and its costs on a substantial indemnity basis thereafter. As mandated by the Court of Appeal for Ontario in Boucher v. Public Accountants Council (Ontario) 2004 CanLII 14579 (ONCA), I remain mindful of my obligation to consider what is “fair and reasonable” in fixing costs with a view to balancing compensation of the more successful party with the overall goal of fostering access to justice.
[6] I have reviewed Farber’s Costs Outline. Some of the hours charged for preparing the supporting affidavits (which were not very lengthy) seem high, and some of the time spent by junior counsel appears to be duplicative, but for the most part the hours claimed and the fees charged appear to be reasonable. Having regard to the results achieved, the reasonable expectations of the parties and the hours claimed by Farber, in my view a fair and reasonable result is for Kanwal to pay Farber its costs of the action (including the motion) in the all-inclusive sum of $32,500.00.
[7] Order accordingly.
Diamond J.
Released: April 9, 2018
COURT FILE NO.: CV-16-561325
DATE: 20180409
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WAVERLY CORPORATE FINANCIAL SERVICES INC. and FARBER CFO RESOURCES INC.
Plaintiffs/Moving Party
– and –
KANWAL INC. and SOCIÉTÉ EN COMANDITE INDUSTRIEL-LEGER
Defendants/Plaintiffs by Counterclaim/Responding Party
– and –
WAVERLY CORPORATE FINANCIAL SERVICES INC.
Defendant by Counterclaim
COSTS ENDORSEMENT
Diamond J.
Released: April 9, 2018