Court File and Parties

COURT FILE NO.: CV-19-00624021-0000 DATE: 20210610 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 547131 Ontario Limited, Applicant AND: MPI Torgan, Respondent

BEFORE: Carole J. Brown J.

COUNSEL: Shaun Laubman, Vlad A. Calina, for the Applicant Aubrey Kauffman, Dylan Chochla for the Respondent

HEARD: February 19, 2020

Costs ENDORSEMENT

[1] The respondent, MPI Torgan Properties Inc., seeks its costs incurred in conjunction with this application brought by the applicant, 547131 Ontario Limited, for leave to appeal the arbitral award of Arbitrator, Larry Banack, under the Arbitration Act, 1991, section 45. The applicant was wholly unsuccessful in its application.

[2] The respondent also seeks its costs of two interlocutory hearings held prior to the application for leave: a Chambers appointment and a motion brought by the applicant to adduce fresh evidence.

[3] The respondent seeks its cost on a partial indemnity basis in the amount of $73,815.90, plus disbursements and HST for a total of $85,885.03 all-inclusive. The applicant opposes this on several grounds, and indicates that, at most, costs of $40,000 would be appropriate.

[4] In general, costs are intended to compensate the successful party or parties, in whole or in part, for their costs incurred in a proceeding. In general, costs are awarded on a partial indemnity basis.

[5] Pursuant to the Courts of Justice Act and the Rules of Civil Procedure, this Court has wide discretion in awarding costs: Courts of Justice Act, RSO 1990, c. C.43, s.131; Rules of Civil Procedure, RRO 1990, Reg. 194, R. 57.01.

[6] Costs must be fair and reasonable and within the expectations of the parties. Boucher v Public Accountants Counsel for the Province of Ontario, 2004 14579 (ON CA), [2004] O.J. No. 2634, 71 O.R.(3d) 291 (Ont. C.A.).

[7] As regards the factors set forth at Rule 57.01, to be considered in exercising my discretion to fix costs, I make the following comments:

Importance and Complexity: The matter was of significant importance to the parties. The issues were of moderate complexity.

Experience of Counsel: The lead counsel representing the respondent had over 40 years of experience. He was accompanied by a younger partner. Two other counsel and a law student had also worked on the file.

Hours spent: In reviewing the breakdown of fees charged by the various lawyers working on the file, it appears that a significant amount of time was spent by the lead counsel, which could have been delegated to more junior counsel. There also appeared to be duplication and overlap of some work done.

Expectations and Proportionality: I am of the view, having reviewed the costs of all parties, including the applicant, that the amounts sought by the respondent are somewhat elevated, but not unreasonable, and were likely within the expectations of the parties, including the unsuccessful applicant. The bills of costs of the parties are not significantly different, that of the applicant being $73,283.07 all inclusive and that of the respondent being $85,885.03 all inclusive.

Conduct of the parties/improper or unnecessary steps: I do not find that there was any conduct on the part of either party that tended to lengthen or delay the proceeding. Nor do I find that there was any improper or unnecessary step taken.

Denial or refusal to admit things that should have been admitted: I do not find that either party denied or refused anything that should have been admitted.

[8] I have taken all of the foregoing into account, with a slight reduction for the hours spent by the various counsel and the apparent duplication or overlap of work. While I acknowledge that it is not always easy to assess how or by whom work on a file could or should be done, in this case the amount of time spent by lead counsel, in addition to junior counsel, on various steps could have been more expeditiously allocated.

[9] I award costs of the appeal to the respondent, payable by the applicant in the amount of $79,000 all-inclusive.

C.J. Brown J.

Date: June 10, 2021