Ruling On Costs
The plaintiff delivered an Offer to Settle, dated November 11, 2008, for $550,000 in full settlement of damages, interests and costs, provided it was accepted by November 21, 2008; after that date, the Offer stipulated that the plaintiff would accept $500,000 exclusive of interests and costs. None of the defendants delivered an Offer to Settle.
The plaintiff submitted two separate scenarios in calculating the quantum of its costs. In the first, Mr. Cord sought the time he expended until the Offer to Settle on a partial indemnity scale and, thereafter, his time on a substantial indemnity scale. Mr. Fiske maintained that he would "write off" all of the time expended by Pace Law Firm staff-including that of Mr. Purewal-thereby limiting his costs to his own personal hours. In this scenario, the sum sought by Mr. Cord was $191,490 plus GST and that of Mr. Fiske was $186,705 plus GST; a total of $378,195 plus GST. In the second scenario, the plaintiff sought substantial indemnity costs throughout, based on Madam Justice Baltman's findings of fraudulent misrepresentation by Mr. Surma and breach of fiduciary duty by the Bhallas and Sutton Group. In this scenario, the fees sought were $403,745 plus GST, with disbursements of $42,777.84 plus GST.
Justice Baltman awarded costs on a substantial indemnity basis throughout. She noted that the case was "somewhat complex" and that "the factual issues were complicated and in many respects unusual." While Mr. Wassermulh, who had represented Neelam Bhalla and SG, had made a written submission opposing the awarding of costs on a substantial indemnity basis, he had not substantiated his position by citing case law; by contrast, the plaintiffs had done so. Justice Baltman applied a 30% discount to Mr. Fiske's fees. Consequently, she awarded the plaintiffs $130,694 for Mr. Fiske's fees, as well as the $217,040 that Mr. Cord had sought, for a total of $347,734 plus GST. The plaintiff was also awarded pre-judgment interest at the rate of 3% per annum from the commencement of the action in 2003 to its completion in 2010.
Costs Awarded: $347,734, plus GST, plus pji at 3% from 2003 to 2010
