COURT FILE NO.: 07-CV-336058PD3 08-CV-352218PD3 CV-14-503147 CV-16-547786 DATE: 2020/04/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

COURT FILE NO.: 07-CV-336058PD3 FRAM ELGIN MILLS 90 INC. (Formerly FRAMBORDEAUX DEVELOPMENTS INC.) Plaintiff – and – ROMANDALE FARMS LIMITED, JEFFREY KERBEL, 2001251 ONTARIO INC. and FIRST ELGIN DEVELOPMENTS INC. Defendants

BETWEEN:

Robert Rueter, Sara J. Erskine, Janet Lunau, for the Plaintiff Sarit E. Batner, Kosta Kalogiros, Avi Bourassa, for the Defendant, Romandale Farms Limited Martin J. Henderson, Miranda Spence, for the Defendants, Jeffrey Kerbel, 2001251 Ontario Inc. and First Elgin Developments Inc.

COURT FILE NO.: 08-CV-352218PD3 FRAM 405 CONSTRUCTION LTD. and BORDEAUX HOMES INC. Plaintiffs – and – ROMANDALE FARMS LIMITED, 2001251 ONTARIO INC., FIRST ELGIN DEVELOPMENTS INC. and JEFFREY KERBEL Defendants

BETWEEN:

Robert Rueter, Sara J. Erskine, Janet Lunau, for the Plaintiffs Sarit E. Batner, Kosta Kalogiros, Avi Bourassa, for the Defendant, Romandale Farms Limited Martin J. Henderson, Miranda Spence, for the Defendants, 2001251 Ontario Inc., First Elgin Developments Inc. and Jeffrey Kerbel

COURT FILE NO.: CV-14-503147 ROMANDALE FARMS LIMITED Plaintiff/Defendant by Counterclaim – and – 2001251 ONTARIO INC. Defendant/Plaintiff by Counterclaim

BETWEEN:

Sarit E. Batner, Kosta Kalogiros, Avi Bourassa, for the Plaintiff/Defendant by Counterclaim, Romandale Farms Limited Martin J. Henderson, Miranda Spence, for the Defendant/Plaintiff by Counterclaim, 2001251 Ontario Inc.

COURT FILE NO.: CV-16-547786 2001251 ONTARIO INC. Plaintiff – and – ROMANDALE FARMS LIMITED Defendant

Martin J. Henderson, Miranda Spence, for the Plaintiff, 2001251 Ontario Inc. Sarit E. Batner, Kosta Kalogiros, Avi Bourassa, for the Defendant, Romandale Farms Limited

HEARD: IN WRITING

DECISION ON COSTS

SPIES J.

Overview

[1] This litigation has been ongoing since 2007. The disputes between the three main parties to this litigation resulted in four actions that were tried together in late 2018. By Reasons for Judgment, I found in favour of Romandale and awarded costs to Romandale: Fram Elgin Mills 90 Inc. v. Romandale Farms Limited et al., 2019 ONSC 5322 (“Judgment”). In this Decision on Costs, I will use the same terms for the parties and the various agreements the parties entered into that I used in the Judgment.

[2] At the trial, Romandale essentially responded to three claims:

a) Fram claimed damages against Romandale in excess of $80,000,000, comprised of $15,650,000 for breach of the COA’s in the 07 Action, $9,635,000 for breach of the CMA’s in the 08 Action, and common law damages for misrepresentation in the amount of $60 million;

b) Kerbel claimed damages in the amount of $5,000,000 for alleged breach by Romandale of the August 2005 Agreement (Kerbel’s 14 Action); and

c) Kerbel sought an order requiring Romandale to sell its 90.25% interest in the Lands at $160,000 per acre, a purchase price set in 2005, which would have resulted in a “sale” at substantially below market price.

[3] As set out in the Judgment, I held that the claims Fram asserted against Romandale in the 07 and 08 Actions and the claims Kerbel asserted against Romandale in the 16 and 17 Actions be dismissed with costs payable to Romandale. I also granted, with costs, the declaration sought by Romandale in the 14 Action that the August 2005 Agreement was at an end.

[4] With respect to costs I stated that if the parties could not agree on costs within 30 days of the release of the Judgment, Romandale was to provide its Cost Outline and written submissions, totaling no more than 15 pages, within 45 days of the release of the Judgment, and that Fram and Kerbel were to deliver their written reply submissions, also limited to 15 pages, within 15 days following receipt of Romandale’s submissions. In response to a request by Fram and Kerbel for an extension and given Romandale had provided its redacted dockets and invoices for its disbursements at Fram and Kerbel’s request, I granted Romandale the right of reply. Although counsel limited their written submissions to 15 pages, they all included appendices and other documents and numerous cases. The resulting material comprised many substantial bound volumes of material. I mention this only to explain that considerable time was required to prepare this Decision on Costs.

[5] The other relevant order with respect to costs was made by Dunphy J., who case-managed the actions in advance of trial. He ordered the parties to exchange Cost Outlines, including an estimate for trial (per diem x number of expected days of trial) in advance of the commencement of the trial and that: “[a]s and when a trial decision is rendered, parties will be held to the outlines exchanged save and except variations to reflect subsequent events ” [emphasis added].

[6] Romandale is seeking substantial indemnity costs of $3,151,000.32, inclusive of disbursements and tax, broken down as follows:

• $2,316,367.60 in fees;
• $287,365.56 in taxes on fees; and
• $547,267.16 in disbursements (including taxes).

[7] Romandale submits that it is entitled to substantial indemnity costs due to “frivolous and needless litigation spanning over a decade, their [Fram and Kerbel’s] “reprehensible conduct giving rise to and during the litigation, including at trial, their breaches of fiduciary duty and bad faith, their unsubstantiated allegations against Romandale, their failure to comply with undertakings, and the Plaintiffs’ rejection of Romandale’s offers to settle to avoid trial”.

[8] In the alternative, Romandale claims partial indemnity costs of $2,283,089.26, inclusive of disbursements and tax, comprised of $1,544,245.06 in fees, $191,577.04 in taxes and $547,267.16 in disbursements. The claim for $2,316,367.60 for substantial indemnity fees is 1.5 times the partial indemnity amount claimed for fees of $1,544,245.06.

[9] Both Fram and Kerbel argue that there was no egregious conduct on their part that would justify a substantial indemnity award and they submit that Romandale is not entitled to substantial indemnity costs. Fram submits that $1,150,000.00 in partial indemnity costs is reasonable. Kerbel’s position is that a reasonable award on a partial indemnity basis would be $1,097.611.91 and that Kerbel should only be responsible for no more than $329,283.00 (30% of total costs of $1,097,612.00), an amount Kerbel submits reflects their proportionate involvement in the proceedings. Kerbel submits that it was not a party to the proceedings for nearly four years (from November 29, 2011 to November 24, 2015) and was allied in interest with Romandale up until the Fall of 2015, when Romandale appointed new counsel. Implicit in the submissions of Fram and Kerbel is that there should only be a single award of partial indemnity costs in the range of $1.1 million in favour of Romandale and it is Kerbel’s position that this award be allocated two thirds to Fram and one third to Kerbel.

Issues

[10] The issues that I must consider in order to determine the quantum of costs that Romandale is entitled to and from whom are as follows:

I. Is Romandale entitled to substantial indemnity costs?

II. What quantum of fees should be awarded to Romandale? In determining this issue there are two particular issues:

a. What is a fair and reasonable amount for Romandale’s fees?

b. Was Fram and Kerbel’s request for dockets unreasonable?

III. Are Romandale’s disbursements reasonable?

IV. How should Romandale’s costs be apportioned between Fram and Kerbel?

Analysis

I) Is Romandale entitled to substantial indemnity costs?

(a) The Law

[11] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), the costs of and incidental to a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. As the successful party, Romandale is clearly entitled to costs. Factors to be considered by this court in determining the quantum of those costs are enumerated in Rule 57 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), which states:

57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,

(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;

(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

(a) the amount claimed and the amount recovered in the proceeding;

(b) the apportionment of liability;

(c) the complexity of the proceeding;

(d) the importance of the issues;

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

(h) whether it is appropriate to award any costs or more than one set of costs where a party,

(i) commenced separate proceedings for claims that should have been made in one proceeding, or

(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and

(i) any other matter relevant to the question of costs.

[12] It is important to note that Rule 57.01(4) provides that nothing in Rule 57 affects the authority of the court under s. 131 of the CJA to, among other things, award all or part of the costs on a substantial indemnity basis.

[13] The fixing of costs is not a mechanical exercise of calculating hours times hourly rates. The quantum should reflect an amount the court considers to be fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than any exact measure of the actual costs to the successful litigant. The overall objective is to fix an amount that is fair and reasonable. In doing so I must stand back from the fee produced by the raw calculation of hours spent times hourly rates and assess the reasonableness of the counsel fee from the perspective of the reasonable expectations of the losing party: see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at p. 302; Coldmatic Refrigeration of Canada Ltd. v. Leveltek (2005), 75 O.R. (3d) 638 (C.A.), at para. 8; Andersen v. St. Jude Medical, Inc. (2006), 264 D.L.R. (4th) 557 (Div. Ct.), at para. 22; Greenhalgh v. Douro-Dummer (Township), 2011 ONSC 2064, [2011] O.J. No. 1657, at para. 7.

[14] Kerbel relies on Gilmor v. Nottawasaga Valley Conservation Authority, 2015 ONSC 5327, at para. 91, for the proposition that the mathematical exercise of counting hours and multiplying hours by hourly rates derived from a grid is a useful and even necessary starting point. To the extent that proposition is at odds with the case law established by the Court of Appeal above, obviously I am bound by the Court of Appeal. Furthermore, Gilmor was an application where the fees claimed were less than $30,000. To consider hourly rates and time spent over 11 years of litigation is not possible to do without a detailed and difficult analysis and calculation. In my view, for reasons I will come to, the fairest way to determine a reasonable amount for costs in this case is to consider the various reductions that Fram and Kerbel submit out to be made and then to stand back and assess the reasonableness of the counsel fees and the disbursements from the perspective of the reasonable expectations of the losing parties.

[15] Romandale seeks costs on a substantial indemnity basis, relying in part on the fact that it made three offers to settle the litigation in September and October 2018, which contemplated one or more parties “buying out” the other party or parties’ interest(s) in the Lands, which were all rejected by Fram and Kerbel. Romandale asserts that it achieved a “significantly better result than any of its offers to settle” at trial, as by the Judgment, Romandale defeated all of Fram and Kerbel’s claims. In addition, Romandale claims that in 2010 it was prepared to resolve the litigation by selling its share in the Lands to Fram and Kerbel at $160,000 an acre, which is what Fram and Kerbel wanted the court to order. Fram submits, however, that there is no evidence to support this last submission.

[16] Fram and Kerbel disagree that the Judgment affords Romandale a better outcome than the offers to settle made by Romandale in 2018. They submit that the outcomes were simply different from the outcomes at trial. In the alternative, both Fram and Kerbel assert that if this court decides to award Romandale elevated costs, it should only be on the basis of its offers to settle from September 6, 2018 (date of the first offer) until the disposition of trial.

[17] As a defendant, Rule 49.10 is not applicable to Romandale. Both Fram and Kerbel pointed out that Romandale’s offers in 2018 were not Rule 49 offers but were instead “business offers”. Romandale does not assert that these were Rule 49 offers and submits that an offer need not be a Rule 49 offer in order for it to be considered for the purpose of awarding elevated costs, relying on Stetson Oil & Gas Ltd. v. Stifel Nicolaus Canada Inparc, 2013 ONSC 5213, [2013] O.J. No. 3702, at paras. 7-8. However, in that case the plaintiff was the winning party. Romandale also referred to the later decision of the Court of Appeal for Ontario, Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 732, where the court stated, at para. 13: “[e]levated costs are warranted by operation of an offer to settle under r. 49.10 […] or where the losing party has engaged in behavior worthy of sanction”, but this case does not assist Romandale as Rule 49.10 does not apply. In Stetson Oil, Newbould J. referred to Law Society of Upper Canada v. Mazzucco (2009), 50 E.T.R. (3d) 203 (Ont. S.C.), where D. M. Brown J., as he then was, awarded substantial indemnity costs to the Financial Institutions in the exercise of his discretion under Rule 57.01, even though their offer to settle did not qualify as a formal Rule 49 offer because it was made less than seven days before the start of the trial. Although the Financial Institutions were one of the winning parties, Brown J. did not consider the fact that technically they were a defendant and as such Rule 49.10 could not apply. That said, they were successful in obtaining relief sought.

[18] The LSUC decision was decided shortly before the decision of the Court of Appeal in Davies v. Clarington, 2009 ONCA 722, 100 O.R. (3d) 66. In my view the law with respect to when a court can award substantial indemnity costs is settled as a result of Davies, where, at paras. 28 and 40, the court held that substantial indemnity costs are warranted in only two circumstances; 1) the operation of an offer to settle under Rule 49.10 and 2) where the losing party has engaged in behaviour worthy of sanction. The fact that the winning party, Romandale, tried to settle is a factor in assessing costs on a partial indemnity basis, in accordance with this court’s discretionary power under Rules 49.13 and 57.01. In my view that judicial discretion is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs as set out in Davies: see Todd Archibald & P. Tamara Sugunasiri, Ontario Superior Court Practice: Annotated Rules & Legislation, 2020 ed. (Toronto: LexisNexis, 2019).

[19] For these reasons, in my view, the only way that Romandale can obtain substantial indemnity costs is to prove that Fram and/or Kerbel engaged in behaviour worthy of sanction, as that has been determined by the common law.

[20] Substantial indemnity costs are very much the exception and should only be awarded in rare and exceptional cases to mark the court’s disapproval of the conduct of the party in the litigation: Hunt v. TD Securities Inc. (2003), 66 O.R. (3d) 481 (C.A.). In Young v. Young, [1993] 4 SCR 3, at para. 260, a majority of the court held that the fact that an application (or in this case, an action) has “little merit” is not a basis for awarding substantial indemnity costs.

[21] In Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, the Supreme Court of Canada affirmed its earlier decision in Young and added, at para. 26:

An unsuccessful attempt to prove fraud or dishonesty on a balance of probabilities does not lead inexorably to the conclusion that the unsuccessful party should be held liable for solicitor-and-client costs, since not all such attempts will be correctly considered to amount to “reprehensible, scandalous or outrageous conduct”.

[22] Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, is the most recent guidance from the Court of Appeal as to when an award of substantial indemnity costs may be appropriate. The court stated at para. 16 that at trial, Myers J. found that the defendants had “brazenly breached” their settlement agreement, contrived to avoid the settlement they made, raised “trivial grounds of argument” and made the litigation lengthier and more expensive than it ought to have been. At para. 42, the court added that Myers J. found that the defendants relied on an obvious slip, that their efforts to undermine the agreements were dishonourable and deserving of censure, which included altering a document in a transparent attempt to hide their illicit activities and that their “kitchen sink approach” had “reprehensively maximized costs and delay” and made the litigation lengthier and more expensive than it ought to have been.

[23] On appeal, the court in Mars confirmed at para. 43 that the kind of conduct that will justify an elevated level of costs is not limited to conduct in the proceedings and can include the circumstances that gave rise to the litigation. The court upheld the award of costs on a substantial indemnity basis, noting that Myers J. was entitled to consider that the litigation was caused by the defendants’ duplicitous breach of agreements made in settlement of the previous litigation, their conduct during the litigation (including litigating what was clearly a technical slip), altering a document, and engaging in tactics that increased costs including asserting claims that were ultimately abandoned.

[24] I must remember, as stated in Davies, at para. 45, that “a distinction must be made between hard-fought litigation that turns out to have been misguided, on the one hand, and malicious counterproductive conduct, on the other. The former, the thrust and parry of the adversary system, does not warrant sanction: the latter well may.” The court went on to give an example of a case where an abuse of process was found to justify substantial indemnity costs as a means to discourage “ harassment of another party by the pursuit of fruitless litigation … particularly where a party has conducted itself improperly ” [emphasis added].

[25] Several cases were cited by Romandale as specific examples where courts have awarded substantial indemnity costs. Fram and Kerbel argue that each one is distinguishable. In order to consider those cases, I have included brief summaries in the paragraphs below.

Ontex Resources Ltd. v. Byron Resources Inc. (2006), 52 C.C.E.L. (3d) 104 (Ont. S.C.)

[26] In this case the plaintiff sued for three- and one-half times the amount that he could have recovered, and the defendant asked for substantial indemnity costs. In a brief endorsement, Cameron J. did not rely on any appellate authority. At para. 17 he did cite other trial level decisions for the proposition that the defendants should not have to suffer financial losses because they had to defend claims that had no legal foundation. He did not state whether or not he was awarding costs on a substantial indemnity basis and awarded an amount that was less that the amount claimed for partial indemnity costs.

Rousseau v. Scotia Mortgage Corporation et. al, 2013 ONSC 677, 19 C.C.L.I. (5th) 288

[27] In this case, Reid J. held at paras. 23-27 that substantial indemnity costs contain an element of penalty, the threat of an award of substantial indemnity costs can function as a tool to “prevent or control frivolous or needless litigation”. Examples include a party that has behaved in an abusive manner, brought a proceeding wholly devoid of merit, abuse of process, and unnecessarily running up the costs of the litigation.

1162740 Ontario Limited v. Pingue, 2017 ONCA 583; Buccilli et al v. Pillitteri et al, 2013 ONSC 1537; and 1505986 Ont. Inc. v. Surma, 2010 ONSC 6956

[28] Romandale relies on these three cases because they all used substantial indemnity costs to sanction breaches of fiduciary duty. Romandale also relied on 1162740 Ontario Limited, et al. v. Pingue, et al., 2015 ONSC 587, where the trial judge found, at para. 18, that the defendant had failed to admit things he should have and had made efforts to deceive the court. On appeal, however, the court affirmed the decision of the trial judge on the basis that she awarded substantial indemnity costs because the judgment obtained by the plaintiffs was more favourable than offers to settle and that the individual defendant had misappropriated thousands of dollars and attempted to deceive the court in addition to breaching her fiduciary obligations.

[29] In Buccilli, at para. 3, Newbould J. cited McBride Metal Fabricating Corp. v. H & W Sales Co. Inc. (2002), 59 O.R. (3d) 97 (C.A.), at paras. 39 and 40, for the proposition that breach of fiduciary duty can give rise to substantial indemnity costs, provided it can be said that the actions of the defendant were reprehensible. On that basis substantial indemnity costs were awarded where the defendants were found to have taken advantage of their recently widowed sister-in-law who was vulnerable and lacked knowledge of what she was giving up, deliberately failing to produce bank records to shed light on what they had done resulting in an inability to determine ownership of certain assets and giving evidence at trial that “defied credibility”: McBride, at para. 5.

[30] Finally, in 1505986 Ont. Inc., at para. 20, Baltman J. cited Mark M. Orkin’s The Law of Costs for the proposition that an elevated costs award makes sense in a case where the defendants were evasive and misleading and had engaged in blameworthy conduct prior to the litigation and their failure to be forthcoming made the process of getting at the truth more difficult and time consuming.

3574423 Canada Inc. v. Baton Rouge Restaurants Inc., 2012 ONSC 296

[31] In connection with adverse credibility findings, Fram relies on this decision of D. M. Brown J., as he then was, for the proposition he stated, at para. 6, that adverse credibility findings are not a sufficient basis upon which to award substantial indemnity costs, because they are often made against the losing party “in standard-fare commercial litigation, yet substantial indemnity costs normally do not arise” and that doing so would see substantial indemnity costs become the norm, not the exception as they are treated. Something more is required to push costs to an elevated level.

XDG Ltd v. 1099606 Ontario Ltd., [2004] O.J. No. 1695 (Div. Ct.)

[32] In this case the Divisional Court held, at para. 35, that the decision to award substantial costs by the trial judge was not an improper exercise of his discretion, given his finding that the defendant had failed to conduct due diligence, was not acting in good faith, and was willfully blind.

Expoed Inc. v. Anaca Technologies Ltd., 2017 ONSC 6513

[33] In this case Myers J. referred to Nazarinia Holdings Inc. v. 2049080 Ontario Inc., 2010 ONSC 2559, [2010] O.J. No. 1810, a decision of Strathy J., as he then was, who provided a good review of the law, including a reference to the decision of Lax J. in Manning v. Epp, [2006] O.J. No. 4239 (S.C.), with respect to unsubstantiated allegations of fraud, dishonesty, and bad faith breach of fiduciary duty. Applying this law, Myers J. held that this was not a case involving a plaintiff with grounds to make serious allegations of dishonesty that it just could not quite make out at trial. It was not a close call and he concluded that making these type of allegations without a hint of evidence or even any effort to try to bring evidence forward to support them is “reprehensible litigation conduct that readily justify punitive cost sanctions based on the precedent decisions discussed above”: at para. 10.

(b) Alleged misconduct by Fram and Kerbel

[34] For the most part Romandale relies on findings made in my Judgment in support of their position that they are entitled to substantial indemnity costs as a result of the conduct of Fram and Kerbel. Those submissions are set out in paras. 15 to 21 of their costs submissions.

[35] In para. 15 of Romandale’s factum, Romandale submits that this court should sanction Fram and Kerbel for “pursuing needless litigation with little foundation”. All of the particulars relied upon by Romandale set out in sub-paras. (a) to (d) are sourced from my Judgment and are accurately stated. As referenced there, in my Judgment I went so far as to find, for example, that Fram’s position that it could not carry out the valuation process contemplated by s. 6.03 of the COAs to be a “ridiculous submission”. With respect to Fram and Kerbel’s claims for specific performance, those were clearly not serious claims from the outset, since at trial Fram put forward no evidence or analysis of the principles applicable to that claim and Kerbel’s only evidence regarding uniqueness was a bald assertion made by Mr. Kerbel. In fact, I relied on the experts called by Fram and Kerbel to find that the Lands are not unique and an admission by counsel for Kerbel that damages were quantifiable.

[36] Many of the arguments asserted by Fram and Kerbel on the issue of whether or not substantial indemnity costs ought to be awarded to Romandale seek to re-litigate findings that I have set out in the Judgment. This includes Fram’s submission at para. 6 of its Cost Outline and Kerbel’s submissions at para. 15. I see no reason to respond again to those arguments. I dismissed them all in my Judgment.

[37] By virtue of Young, the lack of merit in the positions taken by Fram and Kerbel is not, in and of itself, enough to award elevated costs. Romandale, however, makes a number of other arguments in paras. 16-18 of its submissions alleging the lack of good faith of Fram and Kerbel in conducting this litigation. I have concluded, given the findings of fact in my Judgment, that Fram and Kerbel acted in bad faith and used this litigation for tactical reasons to the detriment of Romandale. In coming to this conclusion, I have considered several of my findings:

a) Fram’s failure to complete the valuation process of s. 6.03 of the COAs was because it was “hedging its bets,” tactically tying up the Lands until a later time when it could be sure that it wanted to purchase the Lands, particularly since following through on that procedure would have required Fram to pay significant cash up front to close the deal;

b) Although I made no finding that that Fram breached any duty of good faith or breach of fiduciary owed to Romandale, Fram’s claims for fraudulent and negligent misrepresentation; breach of the organizing principle of good faith; and Romandale’s duty of honesty in contractual performance failed because Romandale had no obligation to disclose the August 2005 Agreement in the first place;

c) Fram’s claim for specific performance pursuant to s. 6.02(b) of the COAs was a factor in the decision of Forestell J., released July 26, 2007, finding irreparable harm and enjoining Romandale from making any disposition of all or part of its interest in the Lands, notably at a time when Kerbel’s position was that the Lands were not unique;

d) Neither Fram nor Kerbel took any of the steps one would expect to even attempt to prove their claims for specific performance;

e) When these actions were coming up for trial in 2010, the Lands had decreased in value. When Fram and Kerbel entered into the Settlement Agreement, neither party was interested in buying and paying for the Lands at that time. Fram could have consented to the August 2005 Agreement then so that the Lands could be sold to Kerbel. It was in their interest, however, to delay for decades and perhaps indefinitely, Kerbel’s purchase of the Lands. By tying up the Lands with this litigation, I found that Fram and Kerbel did so in order to retain for themselves the right to buy the Lands at some point long into the future at the price fixed in the August 2005 Agreement. In the meanwhile, Romandale carried all the risks and burdens associated with ownership of the Lands;

f) While I made no express finding in my Judgment that Romandale was prepared to resolve the litigation by selling its share in the Lands to Fram and Kerbel at $160,000 per acre in 2010 – and Romandale has not provided any evidence in support of this position – I found that the unequivocal intention of Kerbel and Romandale when they entered into the August 2005 Agreement was to close the sale of Romandale’s remaining interest in the Lands as quickly as possible. Clearly Romandale would have been even more intent on doing this, five years later, particularly since the Lands had decreased in value;

g) By entering into the Settlement Agreement, Kerbel acted in its own self-interest to the detriment of Romandale’s interest, thereby undermining the entire value of the August 2005 Agreement for Romandale, and as such Kerbel did not act in good faith. In addition, I found that Kerbel breached its fiduciary duties to Romandale; and

h) It is clear that Fram and Kerbel were content to allow this litigation to continue to trial, and while it was outstanding, deprive Romandale of its ability to sell its interest in the Lands or encumber the Lands for well over a decade, which clearly cost Romandale more than the significant costs of this litigation that it incurred.

[38] I accept that particularly where the stakes are high and given what was at issue in this case, litigation can be hard fought and parties can legitimately take positions for tactical reasons. In my view, however, this conduct crosses the line and becomes an abuse of the court’s process when litigation with little or no merit is used for this purpose and claims brought or positions taken not only have no merit, but are brought or taken for ulterior purposes – to tie up an interest in land – as was done in this case, which in turn would put undue pressure on a party to settle. In my view this was not simply a case where I found certain positions taken by Fram and Kerbel to be without merit. This was a case where they made claims and took positions that they never had any intention of even attempting to prove. This is particularly true of their claims for specific performance. In addition, shortly before trial Fram and Kerbel amended the Settlement Agreement, providing that Fram would consent to the August 2005 Agreement.

[39] Romandale submits that throughout the litigation, Fram and Kerbel sought to take advantage of a mistake adopted by Mrs. Roman-Barber, which was perpetuated by counsel for Fram and Kerbel. I do not accept that submission. As Dunphy J. put it in his Endorsement, the fact that s. 5.07 of the COAs permitted the shotgun buy-sell to be triggered before SPA – and in fact, as of February 2005 – was something that “legions of lawyers”, which included counsel for Fram before McCarthy Tetrault LLP (“McCarthy’s”) was retained in 2015, were mistaken about. There is no evidence that counsel for Fram and Kerbel were aware this was a mistake and withheld that information from Romandale. All counsel for some unknown reason were caught up in this obviously mistaken reading of s. 5.07 prior to 2015. That said, at trial counsel for Fram and Kerbel not only argued that the DMAs had not been terminated as of February 2005, they also took the position that the termination by Romandale of the DMAs was done without a proper basis in order to argue that the Buy-Sell in the COAs could only be exercised after SPA. This in my view was not only a position that amounted to an ambush on Romandale but was an argument totally devoid of merit.

[40] Romandale also argues at para. 19 of its costs submissions that Fram and Kerbel’s conduct just before and at trial is deserving of sanction and sets out there a number of factually accurate observations of what occurred and my reaction to it either during the trial or as expressed in my Judgment. I found a number of other examples of arguments to have no merit, beyond those already referred to. Others relate to the conduct of Fram and Kerbel and their counsel during the trial.

[41] I was particularly perturbed about Fram’s conduct at the outset of the trial during the opening remarks, when counsel for Fram mentioned a 2010 pre-trial direction by Gans J. (“Gans Direction”), who was case managing the case at that time, that the trial should be bifurcated between liability and damages. Nothing more was said at the time of the opening, but it came up again when the failure of Fram to update its damage report became an issue on October 23, 2018. This position was totally disingenuous for many reasons, including the fact that Dunphy J. had been the case management judge for some time and Fram had never raised this with him or counsel for Romandale prior to the commencement of the trial, nor was it an issue pursued at the outset of the trial, apart from it being mentioned briefly in Fram’s opening statement.

[42] What was also very concerning was that it was clear that counsel for Fram had deliberately obfuscated their intent to rely on this dated endorsement in communications with counsel for Romandale in advance of trial. Mr. Rueter sent the Gans Direction to Ms. Batner by email on October 5, 2018. She responded on the same day that: “[t]his has been long since overtaken. Is there a reason you are sending it over now?” Mr. Rueter answered the same day that he assumed she would have it in her file but “as a courtesy I thought I would circulate a copy to all counsel.” This was a totally disingenuous response. Although it did not take me long to dispense with the argument that the Gans Direction should apply, the argument should never have been made. It was not in my view a “minor” matter nor simply a procedural matter that Fram was entitled to press, as suggested by Fram in its closing submissions, particularly coming from senior counsel for the first time at trial, on a case that had been case managed.

[43] In addition, for the first time in its written closing submissions Fram attempted to rely on Romandale’s unamended Statement of Defence in the 08 Action as an admission that the August 2005 Agreement remained valid and enforceable. The fact that Romandale’s Statement of Defence in the 08 Action had not been amended was clearly a result of inadvertence on the part of counsel for Romandale. I found that given the serious issues I needed to deal with, this was a frivolous argument not even worthy of a response. Again, it was an argument that should not have been made, particularly for the first time in closing submissions.

[44] Finally, counsel for Kerbel took the position on the last day of evidence that Romandale’s final expert should not be qualified, after having asked to adjourn early the day before and never giving Dunphy J., counsel for Romandale or this court any notice whatsoever that this would be an issue. His submission that “this is how things are done” and that he never gives advance notice if he is going to challenge the qualifications of an expert was shocking, particularly coming from counsel with over 30 years’ experience. This is an issue that is routinely canvassed at pre-trials and was, as I said at the time, an ambush on counsel for Romandale and this court. Such conduct is clearly not permitted in any civil action, particularly one that is so extensively case-managed.

[45] None of these issues that I had with conduct of counsel for Fram and Kerbel took much trial time to deal with, but they were all serious matters and unnecessary distractions from the important issues that I needed to determine. They were particularly troubling in that they were submissions made by senior counsel who are meant to be setting a good example for the many junior counsel who were present during the trial.

[46] What did take trial time that relates to the conduct of Fram and Kerbel during the trial was the fact that until trial there was no controversy between the parties that, as a factual matter, Romandale terminated the DMAs with Bordeaux as of February 28, 2005, with Fram’s acknowledgement and agreement. As set out in my Judgement, this was noted by Dunphy J. in his Endorsement. At trial, counsel for both Fram and Kerbel refused to admit the accuracy of this statement of fact by Dunphy J.

[47] I set out in my Judgment why I very much doubted that Dunphy J. misunderstood the position of Fram and Kerbel based on what counsel said on their behalf at that time, given the detailed and thorough reasons he gave. I found it significant that counsel before me did not clearly deny what Dunphy J. described as their position. In addition to this conduct on the part of Fram and Kerbel, their position that the Buy-Sell was not triggerable under the COAs as of February 2005 amounted to a drastic change in their position at trial, which was done without notice to Romandale, and contradicted their pleadings and the evidence of their own witnesses as positions previously taken in the litigation. As well, Fram and Kerbel took the position that Romandale’s termination of the DMA’s was without a proper basis, a position that was totally new and totally without merit.

[48] These changes in position of Fram and Kerbel did take trial time, but of even more concern is that these new positions resulted in both Messrs. Giannone and Kerbel giving false evidence at trial, contradicting the evidence they gave in their affidavits, which were filed as the bulk of their evidence in chief at trial. Romandale argues that this court ought to sanction Fram and Kerbel for the behaviour of their principals, as I found that they took patently disingenuous positions to support their theory of the case. I have already referred to the decisions the parties rely on: see 1162740 Ontario Limited and 3574423 Canada Inc., above. In my view there is “something more” in the adverse credibility findings that I made. This was not the usual case where I simply preferred the evidence proffered by Romandale over that proffered by Fram and Kerbel. This related to an important issue – whether or not the DMAs had been terminated – raised for the first time at trial that contradicted the position taken by counsel before Dunphy J. and the clear evidence given by Messrs. Giannone and Kerbel in their affidavits filed in advance of trial. I am very concerned about the fact that they both changed their evidence at trial to accord with this new position taken by their counsel. This is more than the typical adverse credibility finding. In my view it was a deliberate attempt on the part of the principals of Fram and Kerbel to deceive this court in an effort to support their new and changed positions at trial.

[49] Romandale also relies on I. Young & Co. v. Magee, [2005] 142 A.C.W.S. (3d) 231 (Ont. S.C.), in support of its position that Fram’s failure to answer questions on discovery and undertakings with respect to its mitigation efforts and its damage claim warrants elevated costs. In that case Somers J. found, at para. 4, that the failure to honour undertakings had a tendency to prolong the trial well beyond the time it should have taken to complete it. Fram submits that its failure to update its expert report was inadvertent and had no impact on the proceedings. I do not accept that submission. Romandale included this undertaking on an undertakings chart provided to Fram in March 2017. Furthermore, this was an undertaking that simply confirmed that in order to prove its claim for damages, an updated report would need to be provided by Fram. As I said in my reasons, this was a serious breach of the Rules. If Fram was serious about proving damages in the 08 Action, it would have updated the Morassutti Group Report. Its failure to do so, as set out above, appears to have prompted counsel for Fram to attempt to rely on the endorsement of Gans J. that the trial be bifurcated, which in my view, as I have said, was an unjustified ambush on counsel for Romandale and this court. When that did not work, Fram had Mr. Giannone give a “back of the napkin” calculation in his evidence, which I did not accept, and Fram improperly relied on a one-page set of calculations by Mr. Tilley, without giving any notice to Romandale, which I found in any event were misrepresented to this court. As Romandale submits, if Fram did not intend on proving its damages in the 08 Action, it should have abandoned that action in advance of trial.

(c) Conclusion

[50] I have just reviewed a very long list of matters of the type that courts have relied upon to award a winning party substantial indemnity costs. Although I do not find that any of these matters individually would warrant substantial indemnity costs, taken together, in my view, they certainly do. Looked at in their totality, the conduct of Fram and Kerbel was reprehensible and deserving of sanction. Their conduct goes well beyond what would reasonably be expected in a high stakes and hard-fought piece of commercial litigation. In my view, combining all the issues I have reviewed, this case is one of those rare and exceptional cases where an award in favour of Romandale on a substantial indemnity basis is amply justified.

[51] I have considered whether or not I should award Romandale substantial indemnity costs for all of its costs or only in part. Given that the conduct I have taken issue with pervaded not only the conduct of the litigation before trial, but also at trial, and was conduct by both Fram and Kerbel, I have concluded that all of Romandale’s costs should be awarded on a substantial indemnity basis.

II) What quantum of fees should be awarded to Romandale?

[52] Rule 1.03(1) defines “substantial indemnity costs” as costs awarded in an amount that is 1.5 times partial indemnity costs. Given the reference to partial indemnity costs, the Rule 57.01 factors still apply – the costs awarded on a substantial indemnity scale are to be determined on the basis of applying a factor of 1.5 to the amount of the partial indemnity costs as determined to be fair and reasonable: see Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771, 128 O.R. (3d) 64, at paras. 56-57. Furthermore, the reference to full indemnity in Rule 57.01(4) indicates that there is a difference between full and substantial indemnity costs. Therefore, substantial indemnity costs do not result in full indemnity to the winning party.

[53] Considering the factors set out in Rule 57.01 (1), the most important ones in this case are the principle of indemnity; the amount of costs that Fram and Kerbel, the unsuccessful parties, could reasonably expect to pay; the amount in issue; the complexity of the proceeding; and the importance of the issues.

[54] The best indicator in my view of what amount is fair and reasonable to award Romandale is the reasonable expectations of Fram and Kerbel. They submit that Romandale’s counsel’s legal fees are unreasonable compared to their own legal fees. I do not agree. They compare Romandale’s fees to each of their own but that clearly is not the way to view this matter. Had Romandale not succeeded, both Fram and Kerbel would have expected to claim at least partial indemnity costs against Romandale. Based on the draft Cost Outlines circulated by Fram and Kerbel in advance of the trial in accordance with a direction from Dunphy J., Fram would have claimed at least $1,152,241.06 and Kerbel at least $901,506.21, for a total of $2,053,747.27 for partial indemnity costs. I say “at least” because these figures were based on estimated costs in advance of the trial.

[55] Kerbel did not provide an updated Cost Outline following the trial. Fram did and to my surprise its estimated costs for trial attendance actually went down by $1,735 even though the new description now includes closing submissions. Mr. Rueter’s hours increased somewhat but Ms. Erskine’s and Mr. Lunau’s hours went down. It is significant that although the new description includes drafting closing submissions, the time spent after October 26, 2018, the last day of evidence, is not included. This means that time spent preparing Fram’s voluminous written closing submissions of 115 pages and 81 cases and the two days of oral submission in December 2018 are not included in Fram’s revised Cost Outline.

[56] Regardless of whether or not Fram’s revised Cost Outline is accurate, it is significant that the combined costs of Fram and Kerbel are reasonably close to the partial indemnity costs claimed by Romandale of $2,283,089.26, which do include all of the time spent on the voluminous written closing submissions and the two days of oral submissions. As already stated, Fram submits that $1,150,000.00 in partial indemnity costs is reasonable and Kerbel submits that it should only be responsible for no more than 30% of the costs awarded. Setting aside how much should be awarded against Kerbel, using the cost award submitted by Fram, clearly it is not reasonable to expect that on a partial indemnity basis Fram and Kerbel could only be expected to pay Romandale $575,000 each for its costs. As Romandale submits, it was required to fight on two fronts, essentially against two plaintiffs that each raised different issues under different contracts.

[57] There was clearly a great deal at stake in this litigation and without a doubt this litigation was of the utmost importance to the parties. Fram and Kerbel do not suggest otherwise.

[58] There is also no doubt that the litigation was complex, which, as Romandale submits, is readily apparent given the length of the parties’ written submissions. The Judgment summarized in point form the issues that I dealt with and that summary takes up almost three pages of the Judgment: see Judgment, at para. 26. Fram and Kerbel both assert that Romandale complicated the proceeding by changing its position in the litigation or because of its mistake or misunderstanding regarding when the sale of its remaining interest in the Lands to Kerbel could take place. As I said in the Judgment, Romandale did not change its position or take inconsistent positions with respect to the enforceability of the August 2005 Agreement. Fram and Kerbel cannot reargue this.

[59] As for the mistake as to when the Buy-Sell provisions in s. 5.07 of the COAs could be triggered, I found that that mistake was also taken up by Kerbel and Romandale – or as Dunphy J. put it in his Endorsement, “legions of lawyers” – and that in 2015, when Ms. Batner became counsel, Romandale was permitted to amend its pleadings to correct this mischaracterization that had pervaded the pleadings and tainted the parties’ evidence until that time.

[60] The issue now is whether or not Romandale should be penalized for this mistake made by its former counsel, given that it was not a unilateral mistake but was a mistake also made by counsel for Fram and Kerbel. In that regard I find it significant that in the draft Cost Outlines prepared in advance of trial by Fram and Kerbel, they made no downward adjustment for time spent by their counsel on this “mistake”. In my view, in these unusual circumstances, Romandale should not be penalized for a mistake shared by all counsel, particularly when neither Fram nor Kerbel suggest they should have been penalized for making the same mistake, had they been successful. My conclusion is even more reasonable in my view, given my finding that Messrs. Giannone and Kerbel took disingenuous positions at trial to support their theory of the case and changed their evidence attempting to take advantage of a position that was clearly incorrect.

[61] Fram submits that the hourly rates sought by Romandale are unreasonable. In particular, Fram submits that Romandale’s counsel from McCarthy’s have charged hourly rates between 10% and 41% higher than what it submits are the maximums according to the partial indemnity hourly rate guidelines adjusted for inflation published by the Civil Rules Committee in an Information dated July 1, 2005 (the “Grid”).

[62] Romandale was represented at trial by three lawyers: Ms. Batner claiming a partial indemnity rate at $543 per hour and a substantial indemnity rate at $814.50 per hour; Mr. Kalogiros claiming a partial indemnity rate of $327 per hour and a substantial indemnity rate of $490.50 per hour; and Mr. Bourassa, claiming a partial indemnity rate of $318 per hour and a substantial indemnity rate of $477 per hour. These three lawyers combined spent the bulk of the time for trial attendance and preparation during the trial in 2018, including closing submissions.

[63] In support of its hourly rates, Romandale submits that counsel’s hourly rates accord with appellate authority, including Inter-Leasing, Inc. v. Ontario (Revenue), 2014 ONCA 683, 245 A.C.W.S. (3d) 539, where the court stated that the Grid is out of date and that “amounts calculated at 55%-60% of a reasonable actual rate might more appropriately reflect partial indemnity, particularly in the context of two sophisticated litigants well aware of the stakes”: at para. 5.

[64] Dunphy J. in Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONSC 174, dealt with the partial indemnity rates for the motion argued in 2015 that resulted in the Dunphy Endorsement. For that motion the partial indemnity rate claimed by Ms. Batner was $489 per hour, $420 for counsel with a 2004 year of call and $306 for counsel with a 2011 year of call (I presume Mr. Kalorgiros): at para. 33. Those rates are somewhat less than the rates charged by Ms. Batner and Mr. Kalorgiros in 2018 on a partial indemnity basis that I have already set out, which makes sense as they were 2015 rates.

[65] Fram and Kerbel made the same argument before Dunphy J. as they have before me, arguing that the claimed rates accounting for inflation exceeded the Grid. Justice Dunphy acknowledged, at para. 33, that counsel for Romandale was seeking rates “significantly in excess” of the Grid. He set out at paras. 34 to 35 a number of observations, including that the Grid is not binding, that it is a broad, rough and ready rule of thumb applicable to both complex and simple cases, and that where all parties have decided to engage experienced commercial counsel from Downtown Toronto firms, their reasonable expectations are shaped more by their own experience and the market they have turned to. I agree with all of these observations.

[66] Justice Dunphy decided to adopt the approach referred to in Inter-Leasing while “nevertheless fixing a barometer of a ‘reasonable’ starting point with at least a weather eye on the now-dated grid”: at para. 35. In reaching his determination of costs, he held at para. 38 that he would use rates at the lower end of the Inter-Leasing guideline – which I presume was 55% of actual rates – and he then sought to compare that to the other factors. His decision does not set out what the actual rates of counsel were, but presumably they were comparable to the actual rates of these lawyers in 2018.

[67] Ms. Batner’s actual 2018 hourly rate was $905 (2000 call), Mr. Kalogiros’s was $545 (a 2011 call), and Mr. Bourassa’s was $530 (2016 call). I have no doubt that the actual rates set out by McCarthy’s are counsel’s actual rates. The hourly rates claimed by Ms. Batner, Mr. Kalogiros and Mr. Bourassa for their partial indemnity costs are 60% of their actual rates and the hourly rates claimed for their substantial indemnity fees are 1.5 times their partial indemnity fees. In other words, the rates claimed are in accordance with Inter-Leasing, subject to a determination of whether or not the actual rates charged are reasonable.

[68] Mr. Rueter’s actual 2018 hourly rate was $900 (1977 call), Ms. Erskine’s was $500 (2002 call) and Ms. Lunau’s was $250 (2015 call). Mr. Henderson’s actual 2018 hourly rate was $775 (1985 call), Ms. Spence’s was $435 (2011 call) and Mr. Brian Chung’s [1] was $375 (2014 call). Obviously, these actual hourly rates are considerably lower than those that counsel from McCarthy’s can command.

[69] The Grid sets out a single maximum for partial indemnity hourly rates for counsel with less than 10 years’ experience, another for counsel with 10 or more but less than 20 years’ experience, and then another for counsel with 20 years and over. I note that what the Grid overlooked was that years of experience in terms of years following the call to the bar does not necessarily reflect the level of experience of counsel in terms of experience in a court room, which is really what should matter in my view. At the time of the trial Ms. Batner had 18 years’ experience, Mr. Rueter had 41 years’ experience and Mr. Henderson had 33 years’ experience. Although each senior counsel permitted their junior counsel to conduct some aspect of the trial, the bulk of the advocacy was done by senior counsel and so I had ample opportunity to observe each of them.

[70] If I were to consider the experience of counsel as evidenced by the advocacy of senior counsel, I would have to conclude that despite the fact that Ms. Batner is considerably junior in terms of year of call than senior counsel for Fram and Kerbel, she clearly had, by the time of the trial, an abundance of experience as trial counsel that was certainly on par with that of senior counsel with many more years in terms of year of call. The skill and professionalism of counsel for Romandale was apparent at all times during the trial. Furthermore, there is nothing that counsel for Romandale did that lengthened the litigation; in fact, Ms. Batner did her best to streamline the litigation and to assist this court. In addition, the work was also delegated appropriately by Ms. Batner. Once McCarthy’s was retained, the majority of the work was carried out by Mr. Kalorgiros and Mr. Bourassa, with the assistance of students-at-law.

[71] For these reasons I would not reduce the hourly rates claimed by Ms. Batner as I find her actual rate reasonable, given her demonstrated experience and advocacy skills. However, I do find the actual rates charged for junior counsel from McCarthy’s to be high when I consider the reasonable expectations of Fram and Kerbel, given what they were being charged by their counsel and the Grid, after adjusting for inflation. As Fram points out, from Boucher, the amount fixed for costs is not fixed by the actual costs incurred by Romandale. Accordingly, in considering Romandale’s reasonable partial indemnity costs I will reduce the costs claimed for junior counsel from McCarthy’s using somewhat lower hourly rates, considering Fram’s argument that their rates are 10% to 14% higher than the Grid adjusted for inflation.

[72] Fram and Kerbel argue that Romandale spent too much time, duplicated efforts, and/or divided time inappropriately between counsel. For example, Fram argues that Romandale dramatically increased the amount of money it was spending on legal fees after eight years of litigation and submits that 74% of its costs were incurred after Romandale retained McCarthy’s. At para. 25 of its cost submissions a fairly detailed argument is made by Fram comparing the costs of the parties at various stages of the litigation. Fram submits that this dramatic increase at trial was outside the reasonable expectation of the parties. Fram and Kerbel also argue that the time spent by counsel for Romandale is excessive, pointing to the time spent on documentary discovery, preparation, attendance at examinations for discovery, and in preparing closing submissions.

[73] In Risorto et al v. State Farm Mutual Automobile Insurance Company (2003), 64 O.R. (3d) 135, Winkler J., as he then was, stated at para. 9: “courts have repeatedly stated that the role of the court on a costs disposition is not to second-guess successful counsel on the amount of time spent on the case or the allocation of counsel to the tasks at hand”. In my view this makes sense. When considering what the principals of Fram and Kerbel would have reasonably expected to pay, it is the total amount awarded to Romandale. The principals of Fram and Kerbel would have had no expectation as to how that amount would be arrived at.

[74] In any event I do not accept the specific submissions made. As submitted by Romandale, Romandale is the only party that produced all relevant records related to all four actions. Furthermore, the bulk of the discoveries were in 2009. Even without the change in counsel, counsel for Romandale would have needed to review the productions and examinations for discovery in order to prepare for trial, given the trial was nine years later. I have already commented on the fact that Kerbel did not update its Cost Outline at all, and although Fram did, it did not include significant costs that it must have incurred after October 26, 2018, in preparing closing submissions and attending court for oral submissions on two days in December 2018. Only Romandale’s Cost Outline includes the actual time spent at trial and preparation during the trial as well as the time spent preparing their written closing submissions and their attendance at the two days of oral submissions.

[75] The reason why second-guessing counsel is a fruitless exercise when assessing costs is apparent from an example given by Romandale with respect to the discoveries in 2016/2017 of Mrs. Roman-Barber. As Romandale notes, senior counsel for Kerbel, Mr. Henderson, who is a 1985 call, spent 200 hours preparing for those discoveries and yet he did not even examine Mrs. Roman-Barber – Ms. Spence did so.

[76] Fram argues that Romandale is claiming legal fees resulting from choices it made and positions it took in this litigation that prolonged the action and made it more expensive. I disagree that there should be any adjustment on the argument that Romandale altered its position “on a central issue after eight years of litigation”. I found in my Judgment that Romandale had not altered its position. Kerbel argues that Romandale should not be entitled to any costs prior to changing its legal position in the fall of 2015, particularly as against Kerbel as Romandale was aligned with Romandale prior to that time. If that is a reference to the mistake of all parties, I have already dealt with that submission.

[77] Fram submits that Romandale has claimed for costs with respect to five motions for which costs were already awarded to be paid by Romandale. Fram sets out the particulars of this in an Appendix. In its initial cost submissions, Romandale confirmed that the costs claimed do not include the costs of any motions or procedural steps for which costs have already been decided or awarded. All I can confirm from the Appendix to Fram’s cost submissions is that in each case, Romandale was to pay the costs of the motion. The counsel in question and hours involved are set out but without the specific dates of the dockets, as Romandale asserts it would be very time consuming if not impossible for this court to verify Fram’s assertion. As Romandale points out, the amount in issue of $31,248.25 is only 0.99% of Romandale’s substantial indemnity costs.

[78] Fram and Kerbel also challenge Romandale’s claim for fees claimed for adjournments of the trial in 2011, 2012 and 2015 at Romandale’s request and submits that Romandale incorrectly attributes responsibility to Kerbel and Fram for those adjournments. In its Appendix Fram asserts that Romandale spent $3,079.50 preparing for the 2011 trial after the settlement discussions in September 2010, $1,978 for the pre-trial before Moore J. to adjourn the 2012 trial date, and $22,841.50 for trial preparation before the 2015 adjournment request. Again, all Fram sets out in its Appendix is the counsel in question and hours involved, but without the specific dates of the dockets. Without the dates of the dockets, I cannot verify Fram’s assertion. In particular I have no way of knowing what the hours were for, beyond trial preparation, and there is no way to know if the hours spent were costs thrown away. Furthermore, Fram asserts that those adjournments were because of Romandale’s mistake. As I have already found, that mistake was made by all parties and in my view Romandale should not be penalized for it. Furthermore, in 2010, Romandale rightly had to consider what the impact would be from the Settlement Agreement entered into between Fram and Kerbel that it objected to. In any event the total amount in issue is $27,899, which is even less than 0.99% of Romandale’s substantial indemnity costs.

[79] I do agree with Fram and Kerbel that there should be a downward adjustment in the hours claimed by Romandale, given the change in counsel by Romandale to McCarthy’s in 2015, as it would have taken some time for new counsel to get up to speed and that is not a cost that Fram and Kerbel should be responsible for. There is no evidence that Romandale’s Cost Outline makes any deduction for this and so I will consider what is appropriate when I step back and consider what amount for fees is reasonable.

[80] For reasons I will come to, I have decided to include $210,000 of Mr. Forhan’s fees as part of counsel fees rather than expert fees, since he was essentially assisting in the actual litigation preparation.

[81] Apart from a deduction for the cost of McCarthy’s to get up to speed and a reduction in the hourly rate of junior counsel from McCarthy’s already referred to, I am not prepared to make any other reduction for any particular reason before I come to the final amount and consider the factors in Rule 57.01. I agree with the observations of Myers J. in Fimax Investments v. Grossman, 2015 ONSC 2048, where he stated that “absent very obvious abuse or unreasonable, I am disinclined to measure too closely the time of counsel whose preparation led to success”: at para. 6.

[82] Finally, the fact that Romandale, as the winning party, tried to settle is a factor in its favour in the assessment of its costs on a partial indemnity basis after the date of those offers in the fall of 2018. Although the offers to settle in September 2018 provided for something different that was being sought in the litigation, in my view the offers by Romandale made September 6th and 20th clearly provided for a better outcome for Fram and Kerbel than in effect the status quo left by the dismissal of all of the claims they made against Romandale. Fram and Kerbel were in theory seeking specific performance so that they could buy Romandale’s interest in the Lands. In my view Romandale’s result at trial is better than either of its September 2018 offers. I consider this only as a positive factor in my assessment of what amount would be reasonable for Romandale’s costs on a partial indemnity basis. As I have said I do not consider this as a reason for awarding Romandale substantial indemnity costs.

(a) Was Fram and Kerbel’s request for dockets unreasonable?

[83] Fram and Kerbel asked that Romandale submit their redacted dockets and invoices for their disbursements. Romandale objected, but when Fram and Kerbel insisted, Romandale provided these documents (554 pages) on November 6, 2019. Fram and Kerbel then requested an extension of time to provide their cost submissions. Romandale opposed the request for an extension and regardless of whether or not an extension was granted, requested a right of reply. I advised counsel on November 12, 2019 that I was granting the request for an extension, but I was not deciding whether Fram’s request for dockets was reasonable, and if not, what cost consequences should flow from it.

[84] Fram relies on Juras v. Carbone, [1999] O.J. No. 5017, where Quinn J. stated: “In my view, if requested, dockets should be provided in respect of virtually all trials and in motions where the costs involved are significant (in excess of $5,000 is a common benchmark).”: at para. 23. However, Quinn J. also stated at that “the court should not indulge in a detailed analysis of dockets, but instead adopt a general, pragmatic approach, with an eye to the weight and feel of the case.”: at para. 22.

[85] Fram also relied on Animal House Investments Inc. v. Lisgar Development Ltd. (2009), 179 A.C.W.S. (3d) 1065, a decision of Marrocco J., as he then was. He considered Juras and three other decisions. He noted that Rule 57.01(5) does not indicate the form of evidence to be tendered at a costs hearing and that Form 57A indicates that the bill of costs should contain “copies of the dockets or other evidence”: at para. 3. He ordered the plaintiff to produce redacted dockets or other evidence in support of the fees it is claiming.

[86] Romandale submits that Fram’s request was unreasonable. Citing Chandra v CBC, 2015 ONSC 6519, [2015] O.J. No. 5924, Romandale argues that our court has warned against the practice of requesting and scrutinizing dockets and invoices after receiving a detailed Bill of Costs. In the Chandra case, the costs claimed by the CBC were in excess of $1,600,000. The plaintiff requested redacted dockets and they were provided. Justice Mew refused to require the defendants to produce unredacted dockets and noted, at para. 6 [emphasis added]:

The CBC Defendants provided a comprehensive bill of costs. The plaintiff thereafter requested and, ultimately, the CBC Defendants provided, redacted dockets and other supporting information. I pause to observe that requiring the production of dockets where costs are to be fixed by the court rather than assessed should be the exception rather than the rule. The fixing of costs should be a simpler, less expensive and more expeditious means of determining costs that an assessment by an assessment officer. These benefits of fixing costs would quickly be eroded if it became routine to require compete dockets or extensive supporting documentation. See for example Fernandes v Peel Educational & Tutorial Services Ltd, 2015 ONSC 3753, per Lemon J. at paras 39-41.

[87] However, in the decision cited by Mew J., Fernandes, Lemon J. distinguished Juras and found that the bill of costs provided to him had enough evidence to properly assess costs. Nonetheless, he reluctantly held, at paras. 40-41 [emphasis added]:

[40] However, the Rule and the cases are clear that dockets “or other evidence” is required. The bill of costs cannot be the “other evidence” to attach to the bill of costs. Besides dockets, “other evidence” could be an affidavit. I can imagine that this could lead to cross-examinations. That would lead to undertakings and refusals. That would lead to motions for undertakings and refusals. All for a process that, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council for the Province of Ontario [citation omitted]. The rule requires that the courts devise and adopt the simplest, least expensive and most expeditious process for fixing costs.

[41] Here, however, on balance, driven by the Rules and precedents, and with $199,000 in fees in issue, the production of dockets is not unreasonable. I will therefore reluctantly require the plaintiff to provide the dockets to support the bill of costs. Having said that, I do not wish to add to a list of precedents that might be read as requiring dockets or other evidence in all cases. I can imagine that such a rule would not lead to the simplest, least expensive and most expeditious process for fixing costs.

[88] Fram argued that Romandale’s Cost Outline did not reach the necessary level of particularity in order for them to address some additional issues. Fram noted that it required the dockets for four reasons, which they ultimately raised in their cost submissions. Fram was concerned about Romandale claiming legal fees in respect of:

1. motions for which costs were already awarded;
2. adjournments of trial at Romandale’s request;
3. the 2014 and 2016 Actions between Romandale and Kerbel to which Fram was not a party; and
4. experts who were not called at trial.

[89] Fram did make some submissions with respect to Romandale’s dockets and certainly asking for invoices for the experts, for reasons I will come to, was reasonable. In my view, given the amount of costs sought in this case, it was reasonable for Fram and Kerbel to request redacted dockets and copies of the invoices of the disbursements claimed. Although in my view copies of invoices for disbursements should be routinely provided, I would think that a request for redacted dockets should only be made where the claim for costs is substantial. Parties should appreciate that the cost to prepare this material, which requires time consuming careful redaction, is going to be added to the costs awarded to the winning party. Hopefully that will discourage unreasonable requests.

[90] Although I have concluded that Fram and Kerbel acted reasonably in this case in requesting the redacted dockets and invoices, obviously the reasonable fees of Romandale in preparing this information are recoverable by Romandale, since in this case, that was part of the process of assessing costs. Romandale asked for the right of reply in part to address the costs of counsel having to redact and produce docket and invoices. However, Romandale did not submit any amount for the time it spent in preparing this material in its reply submissions. Given that counsel had to redact a significant volume of dockets and the invoices of Mr. Forhan, certainly some additional fees are justified. I will consider what would be reasonable for this additional fee in assessing Romandale’s costs.

(b) Conclusion on the quantum of Romandale’s fees on a substantial indemnity basis

[91] In its revised Cost Outline, Fram’s partial indemnity fees are $848,964.50 plus HST of 13% for a total of $959,329.89. Kerbel claimed partial indemnity fees of $726,353.55 plus tax for a total of $827,779.51. As I have explained, I find that these amounts are much lower than if they had been properly updated. Combined, Fram and Kerbel’s fees, inclusive of tax and on a partial indemnity basis, would be at least $1,787,110 without disbursements.

[92] In considering what is reasonable and proportional I have considered the costs of Fram and Kerbel combined, for reasons I have already given, in addition to the fact that for reasons I will come to, I have found that the award of costs in favour of Romandale will be payable jointly and severally by Fram and Kerbel. That in my view is what they would have reasonably expected. Justice Dunphy made no decision to the contrary when he directed the parties to provide draft Cost Outlines in advance of trial.

[93] Romandale’s total partial indemnity fees are $1,544,245.06 plus tax of $287,365.56 for a total of $1,831,610.61. To this amount I will add an amount for time counsel for Romandale spent providing its redacted dockets and for reasons I will come to, in considering the quantum, I will add Mr. Forhan’s consulting fees in the amount of $210,000. I will make a downward adjustment of the hourly rates of junior counsel at McCarthy’s and for the time spent by McCarthy’s for getting up to speed. I do not intend to set out specific monetary amounts for these adjustments as what matters is what amount I consider, standing back from the fee produced by the raw calculation of hours spent times hourly rates based, that based on my experience is the amount that is fair and reasonable from the perspective of the reasonable expectations of the losing party.

[94] In considering these adjustments to the amount claimed and all of the factors in Rule 57.01 as they apply to this case, in my view a fair and reasonable amount for Romandale’s partial indemnity costs inclusive of taxes is $1,600,000. Applying a factor of 1.5, that results in a substantial indemnity award of $2,400,000 for Romandale’s substantial indemnity fees, inclusive of taxes.

III) Are Romandale’s disbursements reasonable?

[95] Romandale submits that its disbursements in the amount of $547,267.16, inclusive of taxes, are reasonable. The bulk of the disbursements relate to experts and consultants. Romandale did not call the four experts it retained prior to 2015 (“pre-2015 Experts”). Romandale did call two experts at trial, as did Fram. Kerbel called one expert. Romandale also retained Robert Forhan and he was called at trial as a fact witness, not as an expert witness. His evidence was with respect to the evidence of Joanne Barnett, Kerbel’s in-house planning consultant, who was also called a trial. I did refer briefly to the evidence of both Mr. Forhan and Ms. Barnett in my Judgement.

[96] Fram claimed $145,766.39 for five experts but the dates of the invoices are all from 2010, so I presume they were not updated for trial. Kerbel claimed $49,425 plus taxes for its experts in its draft Cost Outline prepared before trial, but again that amount was not updated. In its Cost Outline, Romandale claims $50,062.33 for expert fees plus 5% GST and $374,587.29 for expert and consultant fees plus 13% HST. The total claimed by Romandale for expert and consultant fees is $424,649.62 plus taxes.

[97] Unfortunately, Romandale’s Cost Outline does not break these costs down by expert but Fram went through the Brief of Dockets and Invoices provided by Romandale and detailed the name, date, and amount of the invoices related to experts and consultants and provided that information as an Appendix to its costs submissions (“Fram’s Chart”). I found this very useful, although there is a discrepancy somewhere, as according to Fram’s Chart, Romandale’s expert and consultant costs total $511,648.83. This total represents fees paid to four pre-2015 experts and Mr. Forhan. Furthermore, Fram’s Chart does not include two invoices from CBRE for Paul Morassutti, which are found at Tab D of Romandale’s dockets and disbursements. These invoices are for September and October 2018 and total $25,933.50, which would bring the total of the fees for experts, excluding Mr. Forhan, to $286,533.05 and total invoices including those from Mr. Forhan to $537,582.33. Kerbel argues that Romandale did not claim for the costs of Mike Czestochowski from CBRE, who testified on the specific performance issue, but, although it is not clear, I assume his time is included in the CBRE invoices at Tab D. Kerbel submits that he was the only expert that Romandale called to respond to its specific performance claim. On this basis Kerbel submits it should not be responsible for any of Romandale’s claim for expert and consultant fees.

[98] Fram submits that Romandale chose not to call the four experts it retained prior to 2015. Based on Fram’s Chart, those fees total $260,599.55 which I presume includes tax, the bulk of which was paid to Integris Real Estate Counsellors. Fram submits that the fees from these four experts were incurred between 2010 and 2014, in the lead up to trial dates, which were adjourned at Romandale’s request, and that it would be unreasonable to expect Fram to compensate Romandale for those expert fees, which were “wasted” at Romandale’s request, and which Romandale ultimately decided not to call. I note that Fram does not otherwise submit that these invoices were not for expert fees.

[99] It is Romandale’s position that not calling the pre-2015 experts does not change the fact the costs incurred were reasonable and necessary at the time. It is the position of Romandale that the landscape of the litigation changed due to Fram and Kerbel’s conduct, presumably referring to the August 2015 Agreement. As Romandale points out, Fram did not call anyone from the Morassutti Group.

[100] I agree with Romandale that reasonable fees paid for an expert witness who is not ultimately called at trial can be recovered. I have reviewed the invoices of these pre-2015 experts and based on that review I have only a limited understanding of what purpose they were retained for. The biggest portion of these costs were incurred by Integris Real Estate Counsellors ($168,449.36 based on Fram’s Chart) and it seems that they were retained for appraisal of land purposes. I have no idea how that related to the litigation as it stood before the retainer of McCarthy’s. However, apart from challenging the amount, neither Fram nor Kerbel suggest these invoices were not for expert fees. Their position is that compared to the expert fees they incurred, these fees are excessive.

[101] Fram and Kerbel also submit that Romandale should not be compensated for the fees paid to Mr. Forhan ($251,049.28 including HST, based on Fram’s Chart) because he was not qualified as an expert witness and neither Fram nor Kerbel have claimed for any consultant fees. Fram submits that each of the parties in the litigation had development consultants for the Lands and that these fees are not recoverable as expert fees. Fram refers to some of Mr. Forhan’s invoices, which include multiple days of attending the trial, reviewing expert reports filed by experts called by Fram and Kerbel. Fram submits that it is not fair or reasonable to expect them to pay hundreds of thousands of dollars for the services of a fact witness who did not offer expert assistance to assist the court.

[102] Mr. Forhan’s affidavit, filed as his evidence in chief, states that he was retained by Romandale to advise and manage all aspects of the municipal approvals process for Romandale, including working toward obtaining the most appropriate land uses for each of the farms comprising the Lands for future development. His invoices begin November 2013 and end in November 2018. The bulk of the time claimed was in the months of September and October 2018. Fram and Kerbel argue that Romandale has claimed for fees paid to Mr. Forhan that were not related to the litigation. It is Romandale’s position that only Mr. Forhan’s litigation consulting fee is claimed, not his work relating to land development or other services he provided to Romandale. Romandale deals with the one example from Mr. Forhan’s dockets, dated July 11, 2013, relied upon by Kerbel and submits that Romandale only claimed part of the amount of time and that it excluded the time spent on unrelated matters.

[103] I have reviewed these invoices and certainly for a few it seems they include time spent by Mr. Forhan on non-litigation matters. For example, there are entries for preparing a Planning Report and Opinion and some for attending a Project Management meeting. It seems that it was left up to Mr. Forhan’s firm to identify what costs were incurred for the litigation.

[104] However, having reviewed the invoices, based on the description of services given, it does appear that most of the work of Mr. Forhan and his associates performed was to assist in the conduct of the litigation itself, including reviewing pleadings, assisting in the preparation for discovery of Mr. Roman-Barber, answering undertakings, reviewing pre-trial briefs, preparing critiques of the reports of Ms. Spears, and attending many of the days during the trial. In theory if a law firm needs the assistance of an expert in a particular area and retains someone as a consultant, having been provided with no case law on the subject, I would say that claiming those costs if reasonable is acceptable. However, the only way to consider the reasonableness of those costs is to consider them as part of the fees of counsel. I see no other way to do so. Although Mr. Forhan and his associates did not have any legal experience as far as I know, they were assisting in the performance of the various tasks counsel needed to do to get this matter to trial. For this reason, the only portion I will consider as part of the disbursements for Mr. Forhan as an expert witness, is an estimate for his actual time preparing his affidavit for trial and his attendance at trial as a witness. His hourly rate was $250. Assuming a generous 40 hours were spent, which includes one court day, that would equal $10,000 plus GST. For this reason, I will include $11,300 for Mr. Forhan as part of the disbursements. As for the balance of $239,749 ($251,049 minus $11,300), I will deduct an amount to reflect the fact that there may be errors in including some of the time that was for non-litigation matters. For these reasons I only added $210,000 to counsel fees for Mr. Forhan when I considered whether the counsel fees as a whole are reasonable.

[105] Even considering Mr. Forhan’s fees in this manner and taking them out of Romandale’s claim for expert fees, in my view the fees of the pre-2015 experts are too high, when compared to the fees paid by Fram and Kerbel for experts they retained and given the lack of information I have to assess what these fees were for. In my view the total amount claimed for the pre-2015 experts is beyond the reasonable expectations of the parties. Had I been provided with some information by Romandale to explain why the pre-2015 experts were retained and the nature of the services they performed, I might have been able to conclude that even though their fees total $260,599.55 that the amounts charged are reasonable, but I do not have that information. Accordingly, I will reduce those fees for the pre-2015 experts to $200,000.

[106] For these reasons, I have concluded that Romandale should be awarded for its expert and consultant fees for Mr. Forhan in the amount of $11,300 inclusive of HST and for its pre-2015 experts, $200,000 inclusive of tax. In addition, there are the CBRE invoices which total $25,933.50 inclusive of tax. That brings the total disbursements for experts and consultants to $237,233.50. In addition, there are the other non-expert disbursements, for which no issue was taken. These total $71,418.07 ($4,972.09 plus GST of $248.60 and $57,417.15 plus HST of $7,464.23 plus $1,316). This brings Romandale’s total disbursements inclusive of all taxes to $308,651.57.

IV) How should costs be allocated as between Fram and Kerbel?

[107] Kerbel submits that it was not a party to these proceedings for four years from November 2011 to November 2015. By order of Dunphy J., dated November 24, 2015, Kerbel was only joined as a party for the limited purpose of being bound by any determination made. Kerbel submits that any costs it may be subject to must be proportionate to their “relatively limited role in the overall proceedings”, which it submits is no more than 30% of the total costs awarded to Romandale. Kerbel argues that this court has discretion to depart from the general rule that costs are to be awarded on a joint and several bases against co-defendants or plaintiffs. Fram submits that fees claimed by Romandale for the 14 and 16 Actions against Kerbel should be unrecoverable against Fram as Fram was not a party to those proceedings. In an Appendix Fram asserts those fees total $314,595.00.

[108] In its Reply Submissions, Romandale only responds to the argument made by Kerbel and argues that it is fair to split Romandale’s costs 50/50 as between Fram and Kerbel.

[109] In Meady v. Greyhound Canada Transportation Corp., 2013 ONSC 5568, at para. 86, Platana J. set out the circumstances where courts can depart from the general rule that unsuccessful plaintiffs are jointly and severally liable for costs and disbursements of the winning party. Kerbel submits that the four actions were consolidated and heard together because they involved the same parties and, to a large extent, similar issues. Kerbel argues that to award costs on a joint and several basis would create an unfair, disproportionate burden on Kerbel, in contravention of the principle of proportionality, which is a key principle in the awarding of costs.

[110] Although it is true that Kerbel did not participate in this litigation for four years, the fact is that had it been successful, based on the draft Cost Outline it provided in advance of trial, it would have sought at least $901,506.21 for partial indemnity costs from Romandale. Significantly, that Cost Outline includes pre-2015 costs and in fact claims costs for every year from 2007. Furthermore, as Romandale submits, although Romandale and Kerbel were aligned originally, that ceased when Kerbel signed the Settlement Agreement in 2010. Romandale promptly accepted repudiation and sought to bring Kerbel back into the litigation.

[111] Kerbel argues that it was only directly involved in three of the eight issues I identified at para. 26 of my Judgement. However, as Romandale submits with respect to the enforceability of the August 2005 Agreement, there were three sub-issues and nine further sub-issues. I agree with Romandale that Kerbel’s issues were central at trial. This explains why Kerbel’s draft Cost Outline, without including time for the voluminous written submission, is not that far off the amount submitted by Fram. Kerbel did not have, as it submits, a “relatively limited role in the overall proceedings”.

[112] Furthermore, if I were to agree to a discount for Kerbel, using the same logic I would have to do so for Fram. Given their respective participation in this litigation in my view it would result in equal discounts and cancel each other out.

[113] As Romandale submits, it was required to fight on two fronts, essentially against two plaintiffs that each raised different issues under different contracts. In my view it would not be unfair or disproportionate to either Fram or Kerbel to award Romandale’s total costs against Fram and Kerbel on a joint and several basis.

Disposition

[114] The parties expended significant legal fees in this case, which took a very long time to get to trial. At trial, as I have said, Fram and Kerbel made meritless claims and took unreasonable positions. As the Supreme Court of Canada said in Kerr v. Danier Leather Inc., 2007 SCC 44, [2007] 3 S.C.R. 331: “protracted litigation has become the sport of kings in the sense that only kings or their equivalent can afford it. Those who inflict it on others in the hope of significant personal gain and fail can generally expect adverse cost consequences”: at para. 63.

[115] For all of these reasons I find that Romandale is entitled to costs for fees and disbursements inclusive of tax, in the amount of $2,708,651.57 ($2,400,000 in fees plus $308,651.57 in disbursements) on a substantial indemnity basis, payable jointly and severally by Fram and Kerbel. I am satisfied that this amount is fair and reasonable and ought to have been within the reasonable expectations of Fram and Kerbel in light of the complexity of the matter, what was at stake, and what they were incurring and expected to incur for their own legal costs.

SPIES J.

Released: April 2, 2020

COURT FILE NO.: 07-CV-336058PD3 08-CV-352218PD3 CV-14-503147 CV-16-547786 DATE: 2020/04/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

FRAM ELGIN MILLS 90 INC. (formerly FRAMBORDEAUX DEVELOPMENTS INC.) Plaintiff – and – ROMANDALE FARMS LIMITED, JEFFREY KERBEL, 2001251 ONTARIO INC. and FIRST ELGIN DEVELOPMENTS INC. Defendants

FRAM 405 CONSTRUCTION LTD. and BORDEAUX HOMES INC. Plaintiffs – and – ROMANDALE FARMS LIMITED, 2001251 ONTARIO INC., FIRST ELGIN DEVELOPMENTS INC. and JEFFREY KERBEL Defendants

ROMANDALE FARMS LIMITED Plaintiff/Defendant by Counterclaim – and – 2001251 ONTARIO INC. Defendant/Plaintiff by Counterclaim

2001251 ONTARIO INC. Plaintiff – and – ROMANDALE FARMS LIMITED Defendant

Released: April 2, 2020

[1] Brian Chung is not shown as counsel on the Judgment, but my belief is that Kerbel often had three counsel present, as did the other parties.