Court File and Parties

Court File No.: CV-16-551366 Date: 2022-02-11 Superior Court of Justice - Ontario

Re: George Leslie Kemeny, Plaintiff And: Callidus Capital Corporation, Defendant

Before: Stewart J.

Counsel: Michael P. Farace, for the Plaintiff John D. Leslie and Mordy Mednick, for the Defendant

Heard: In Writing

Costs Endorsement

[1] In my decision of December 15, 2021 I invited counsel for the parties to provide written submissions on costs and calculation issues if those subjects could not be agreed upon. I have now received and considered their submissions.

[2] It is undisputed that the Plaintiff was successful in his action and is presumptively entitled to a costs award in his favour. What is in issue is the magnitude of the amount to be awarded.

[3] On February 16, 2021 the Plaintiff served a formal Offer to Settle for US$400,000.00, all-inclusive.

[4] The trial in this matter consumed six days of court time. In the result, the Plaintiff recovered judgment against the Defendant for the equivalent of US$679,800.00. The parties have agreed that when converted into Canadian funds the amount of money owing to the Plaintiff is $873,203.10. Similarly, the parties have agreed that prejudgment interest on that amount totals $58,128.29. Both of these calculations are accepted by me as correct and appropriate.

[5] Accordingly, the result achieved by the Plaintiff following trial was considerably better than what he was prepared to settle for two months before the trial commenced.

[6] The Plaintiff seeks costs payable by the Defendant on a partial indemnity basis up to the making of his Offer, and on a substantial indemnity basis thereafter. This amounts to a figure of approximately $107,000.00, inclusive of disbursements and applicable taxes, when the $15,000.00 costs awarded against the Plaintiff by Ferguson, J. as referred to in his submissions is offset against what the Defendant is to be ordered to pay.

[7] The Defendant takes issue with the appropriateness and proportionality of the amount the Plaintiff seeks in costs, and advocates a somewhat lower amount.

[8] On March 2, 2021 the Defendant served a formal Offer to Settle for payment to the Plaintiff of US$25,000.00. It is evident that this Offer provides for a payment that is much lower than the amount found following trial to be owing to the Plaintiff.

[9] The Defendant also seeks in the amount of $5500.00 for its successful motion brought at the beginning of trial seeking to withdraw an admission in its pleading, and asks that the Plaintiff commensurately not be permitted to recover costs for any time spent preparing for or arguing the motion, or any costs for providing costs submissions (see: Bloor Parliament (Block A) Investments Limited v. Sherbourne Residential (Concert) LP, 2021 ONSC 929).

[10] The Defendant also challenges the rates claimed by the Plaintiff in his Bill of Costs and the reasonability of the amount of time spent on certain issues and tasks. In its submission, an appropriate and reasonable amount for the Plaintiff to recover by way of costs is $85,000.00 all-inclusive.

[11] Having considered the submissions, and having concluded that setoff of the costs award of Ferguson, J. is appropriate as well as some reduction in favour of the Defendant for its costs of time spent in dealing with the motion brought at the outset of trial as well as for any costs claimed in connection with making submissions on costs, I am of the view that a fair, reasonable and proportionate disposition of costs results in an award of costs to the Plaintiff payable by the Defendant in the amount of $85,000.00, plus allowable disbursements and applicable taxes.

Date: February 11, 2022 Stewart J.