Court File and Parties
COURT FILE NO.: CV-04-11921
DATE: 2019-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Vellenga
Applicant
- and -
Peter Boersma, Adrienne Boersma and Weijs Investment Corp.
Respondents
Counsel:
Graydon Sheppard, for the Applicant
M. Abradjian and R. Kis, for the Respondents
COSTS RULING
P. R. SWEENY J.
[1] I heard this case on September 17, 18, 19, 20, and 24, 2018. The applicant was successful. The parties were not able to agree on costs. I received costs submissions from the applicant on December 12, 2018; the respondents on December 19, 2018; and reply submissions on December 21, 2018.
[2] The applicant seeks his costs on a substantial indemnity basis fixed in the amount of $151,648.77 inclusive of disbursements or, alternatively, on a partial indemnity basis in the amount of $101,777.35. The respondent denies the applicant is entitled to costs on a substantial indemnity basis and challenges the quantum of costs claimed on a number of bases.
[3] Awarding costs is an exercise of discretion governed by section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and the provisions of Rule 57.01 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. The applicant was successful and is entitled to his costs.
[4] With respect to the scale of costs, although the applicant was successful, in my view it is not a case for costs to be awarded on a substantial indemnity basis. The respondents’ conduct is not reprehensible, scandalous, or outrageous such that substantial indemnity costs are warranted. The circumstances surrounding the applicant’s non-execution of the documents was not clear. While I was satisfied that the applicant did not sign the documents, I do not know the circumstances surrounding the marks made on the documents purporting to be the applicant’s signature. The mere breach of a fiduciary duty does not lead to an award of costs on a substantial indemnity basis. The costs will be awarded to the applicant on a partial indemnity basis.
[5] The application was commenced seeking a variety of different forms of relief. Ultimately, the issues were narrowed for the purposes of the hearing before me. The initial circumstances were unusual, and the applicant was in the dark about the corporate issues. I do not fault the applicant for time spent initially in these proceedings.
[6] The cross-examinations provided important evidence. The examinations for discovery could be brief because extensive cross-examination had been conducted. An application, which is how this proceeding was commenced, frequently proceeds on the basis of the cross-examinations on the affidavit filed in support of and response to the application. I find the costs associated with the cross-examination and examination for discovery to be recoverable in the context of this application. In the context of the cross-examinations, examination for discovery documents reviewed, and reports prepared, the applicant narrowed the issue for my determination. The applicant reasonably incurred these costs and I find they are recoverable.
[7] On the issue of preparing a new statement of claim, the applicant asserts that it was understood that a statement of claim would need to be prepared, but ultimately, no claim was issued and the matter proceeded on the single issue. I accept that the time was spent by the applicant’s counsel, and although not used, he should be compensated for that expense. There was significant time spent by two different lawyers, in two law firms, and so the bill of costs did take more time than usual. I find the time spent to settle the order to be reasonable.
[8] With respect to the quantum of costs, the parties’ reasonable expectation is to be considered, as is the principle of indemnity. The respondents have not provided a bill of costs nor any information with respect to the hourly rates counsel charged. I observe that the hourly rates charged are reasonable. The trial was conducted efficiently by all counsel.
[9] Having reviewed the bill of costs the applicant submitted, I am satisfied that, given the hourly rates charged and the work done, an appropriate partial indemnity costs up to and including the preparation of the bill of costs is $70,000.00 plus HST of $9,100.00.
[10] With respect to the disbursements, I deduct the amount charged for transcripts on cross-examinations together with fees for the service of documents on motions where there were no costs awarded. I am prepared to allow the $3,100.00 for internal photocopying charges and deduct $220.00 for the statement of claim, which was not issued. In total, I reduce the disbursements by $2,000.00, rounding the balance to $8,000.00 for disbursements inclusive of HST.
[11] In the result, the respondents shall pay the applicant his costs on a partial indemnity basis fixed in the amount of $87,100 inclusive of HST and disbursements.
Sweeny J.
Released: January 29, 2019
COURT FILE NO.: CV-04-11921
DATE: 2019-01-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Gordon Vellenga
Applicant
- and -
Peter Boersma, Adrienne Boersma and Weijs Investment Corp.
Respondents
COSTS RULING
PRS:rh
Released: January 29, 2019