Bank of Nova Scotia v. Diemer, (2014) 327 O.A.C. 376 (CA)

• Judge: Hoy, A.C.J.O., Cronk and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 10, 2014
• Jurisdiction: Ontario
• Citations: (2014), 327 O.A.C. 376 (CA);2014 ONCA 851

BNS v. Diemer (2014), 327 O.A.C. 376 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.008

The Bank of Nova Scotia (plaintiff/respondent) v. Daniel A. Diemer o/a Cornacre Cattle Co. (defendant/respondent)

(C58381; 2014 ONCA 851)

Indexed As: Bank of Nova Scotia v. Diemer

Ontario Court of Appeal

Hoy, A.C.J.O., Cronk and Pepall, JJ.A.

December 1, 2014.

Summary:

A motion judge refused to approve legal fees of $255,955 that were requested by a court appointed receiver on behalf of its counsel in a cattle farm receivership that spanned approximately two months. The motion judge assessed the fees at $157,500. The receiver appealed.

The Ontario Court of Appeal dismissed the appeal.

Receivers - Topic 4062

Compensation - Measure of - Considerations - [See Receivers - Topic 4064 ].

Receivers - Topic 4064

Compensation - Measure of - Reasonable and proper charges - A motion judge refused to approve legal fees of $255,955 requested by a court appointed receiver on behalf of its counsel (Borden Ladner Gervais LLP ("BLG")) in a cattle farm receivership that spanned approximately two months - The farm operations were located near London, Ontario - The motion judge assessed the fees at $157,500 - The receiver appealed - The Ontario Court of Appeal dismissed the appeal - The initial appointment order stating that the compensation of counsel was to be paid at standard rates and the subsequent approval of the Receiver's reports did not oust the need for the court to consider whether the fees claimed were fair and reasonable - The motion judge did not err in disallowing BLG's fees at its standard rates - The motion judge did not err in fact in concluding that counsel's fees were not fair and reasonable - Nor did the motion judge focus his decision on what remained to the debtor after the creditors, the Receiver and Receiver's counsel had been paid, as alleged by the appellant - The motion judge correctly considered the size of the estate - While it was inappropriate for the motion judge to adopt a mathematical approach and simply apply the rates of London counsel, that was not fatal - The motion judge's decision would have arrived at the same result in any event - He was informed by the correct principles, which led him to conclude that the fees lacked proportionality and reasonableness - He made it clear that the driving concern in his analysis was the "overall reasonableness of the fees" and that his decision should not be read as saying that Toronto rates had no application in matters in London or its surrounding areas - See paragraphs 47 to 60.

Cases Noticed:

Bakemates International Inc., Re - see Confectionately Yours Inc. et al., Re.

Confectionately Yours Inc. et al., Re (2002), 164 O.A.C. 84 (C.A.), leave to appeal denied (2003), 312 N.R. 195 (S.C.C.), appld. [para. 21].

BT-PR Realty Holdings Inc. v. Coopers & Lybrand Ltd. (1997), 29 O.T.C. 354 (Gen. Div.), refd to. [para. 21].

Federal Business Development Bank v. Belyea and Fowler (1983), 44 N.B.R.(2d) 248; 116 A.P.R. 248 (C.A.), appld. [para. 21].

HSBC Bank Canada v. Lechier- Kimel, [2014] O.A.C. Uned. 659; 2014 ONCA 721, refd to. [para. 29].

Authors and Works Noticed:

Ben-Ishai, Stephanie, and Torrie, Virginia, A "Cost" Benefit Analysis: Examining Professional Fees in CCAA Proceedings, in Sarra, Janis P., Annual Review of Insolvency Law (2010) 141, p. 151 [para. 34].

McElcheran, Kevin P., Commercial Insolvency in Canada (2nd Ed. 2011), pp. 185 [para. 30]; 186 [paras. 30, 31].

Pardau, Stuart L., Bill, Baby, Bill: How the Billable Hour Emerged as the Primary Method of Attorney Fee Generation and Why Early Reports of its Demise May be Greatly Exaggerated (2013), 50 Idaho L. Rev. 1, pp. 2, 4, 5 [para. 38].

Sarra, Janis P., Annual Review of Insolvency Law (2010), p. 151 [para. 34].

Counsel:

Peter H. Griffin, for the appellant, PricewaterhouseCoopers Inc.;

James H. Cooke, for the respondent, Daniel A. Diemer;

No one appearing for the respondent, The Bank of Nova Scotia.

This appeal was heard on June 10, 2014, before Hoy, A.C.J.O., Cronk and Pepall, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Pepall, J.A., and was released on December 1, 2014.