Notice of Application (Cost Awards)

MacLeod v. Rayment & Collins Ltd., 2006 CanLII 16363 (ON SC)

[6] The respondents have claimed costs in the amount of $47,469 for fees plus GST and disbursements for a grand total of $53,944.99 for both counsel, on a partial indemnity scale.

[7] In July 2005, the company redeemed the shares of the respondent, Richard Rayment and from that point forward the dispute was essentially between the applicants and Kevin Collins. Although the company and Collins have been separately named as respondents and relief has been sought against each, I see no reason for two counsel on this motion. When I raised this with counsel for the respondents they agreed that there was no conflict necessitating separate counsel and in fact Collins has throughout instructed each of them. Furthermore on the argument of the motion both counsel, not surprisingly took the same position. Although Collins may chose to have separate counsel represent him and the company, as that was not necessary it is not an expense that the applicants should bear. Accordingly I am only prepared to award costs for one firm.

[12] In considering what is reasonable to award for fees, it is usually of assistance to consider the Costs Outline of the opposing party. In the revised Cost Outline submitted by the applicants, the amount for costs claimed for this part of the motion is $44,200.97 of which $4,900.14 is disbursements. Although the disbursements claimed are considerably more than the disbursements incurred by counsel for the respondents, the fees claimed are substantially more than each set of counsel for the respondents. Part of the explanation is that Mr. Jones has claimed at the rate of $350 per hours. The rest of the difference appears to simply be that the applicants’ counsel spent many more hours on this aspect of the motion.

[13] If I did not have the benefit of the Costs Outline of the applicants I would have concluded that the time claimed by the respondents, even on the basis of a single set of counsel was somewhat high. However, as compared to the time spent by counsel for the applicants, the costs claimed are clearly reasonable. I also accept the submission of the respondents that the shifting position of the applicants added to the complexity of the hearing. I must however also take into account, as a factor, that the applicants obtained some small success on the motion.

[14] In all of the circumstances I fix the fees for one set of counsel for the respondents, in the amount of $19,000 inclusive of GST. Accordingly, the respondents are entitled to costs in the amount of $20,340.59. I will leave it to the respondents to decide how to allocate the costs awarded.