Court File and Parties
Court File No.: CV-23-00698870-00CL Date: 2024-02-15 Superior Court of Justice - Ontario
Re: Neerja Srivastava, Applicant And: DLT Global Inc., Respondent
Before: Cavanagh J.
Counsel: Alan Merskey and Jessica A. Zagar, for the Applicant Andrew McCoomb and Devan Tamura, for the Respondent
Heard: In Writing
Costs Endorsement
1The Respondent, DLT Global Inc. ("DLT"), seeks costs on a partial indemnity scale in the amount of $140,572.91 (including fees of $121,625.70) for successfully defending this application.
2The Applicant submits that although the application was dismissed, the Court did not absolve DLT or its actions. The Applicant submits that the Court acknowledged that he may have other claims relating to his rights as a shareholder of DLT and the transfer of the Conatus business to DLT. The Applicant submits that in these circumstances, it is not reasonable to require him to pay the full amount of partial indemnity costs sought by DLT.
3The Applicant submits that the proper order as to costs is that there be no costs or reduced partial indemnity costs.
4DLT was successful in opposing the application. None of the relief sought by the Applicant was granted. As the successful party, DLT is entitled to its costs of the application on a partial indemnity scale.
5The Applicant submits that in determining the issue of costs, I should take into account that DLT did not upload to CaseLines its Bill of Costs in advance of the hearing. The Applicant submits that the amount claimed for fees is excessive and that too much partner time was spent and not enough associate or clerk time. The Applicant submits that DLT has overstated the complexity of the application and the amounts involved. The Applicant submits that time spent preparing an affidavit (affirmed by Karamjot Anand) for a motion in another action (where the affidavit was also used on this application) should be disallowed.
6The Applicant sought an order winding up DLT and distributing its assets. This relief, if granted, would have had serious implications for DLT and its shareholders. The application was very important to DLT and its shareholders. The application was of moderate complexity. Each party relied on an application record consisting of six volumes. The hours claimed by DLT show a reasonable mix of partner time and associate, clerk, and student time. I disagree that the time spent preparing the affidavit of Mr. Anand should not be allowed. It was not unreasonable for DLT to rely on this affidavit in response to the application. Although DLT failed to upload its Bill of Costs in advance of the hearing, I do not consider it to be proper to reduce the amount of costs to be awarded because of this failure.
7The Bill of Costs of the Applicant shows costs on a partial indemnity scale of $148,541.04 (including fees of $128,693.70). The Applicant submits that his Bill of Costs is not a proper comparator because his counsel undertook different and more extensive work to prepare for the hearing. The work may have differed, but the amount of costs incurred by the Applicant for this application is a relevant consideration when the reasonableness of DLT's claim for costs is considered.
8When I consider the factors in rule 57.01 of the Rules of Civil Procedure, I am satisfied that the costs claimed by DLT are fair and reasonable and fall within a range of costs that the Applicant would reasonably expect to pay if he was unsuccessful on the application. I also allow DLT its costs of preparing costs submissions in the amount of $2,317.10 (including HST).
9I fix costs of the application to be paid by the Applicant to DLT in the amount of $142,890.01.
Cavanagh J.
Date: February 15, 2023