Morton et al. v. Asper et al., (1991) 72 Man.R.(2d) 184 (QB)

• Judge: Morse, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 22, 1991
• Jurisdiction: Manitoba
• Citations: (1991), 72 Man.R.(2d) 184 (QB)

Morton v. Asper (1991), 72 Man.R.(2d) 184 (QB)

MLB headnote and full text

Paul Morton, Seymour Epstein, Seyton Limited, Incorporated Broadcasters Limited and MAE Management Corporation (plaintiffs) v. Israel H. Asper, Canwest Communications Corporation, Canwest Communications Holdings Inc., Canwest Communications Enterprises Inc., Canwest Broadcasting Ltd., Peter M. Liba, Peli Ventures Inc., Donald C. Brinton and Brinco Media Associates Ltd. (defendants)

and

Israel H. Asper, Canwest Communications Corporation and Canwest Communications Enterprises Inc. (plaintiffs by counterclaim) v. Paul Morton, Seymour Epstein, Seyton Limited, Incorporated Broadcasters Limited, MAE Management Corporation, Global Ventures Western Limited, Global Ventures Holdings Limited, The Canada Trust Company, Carol Rosenfeld, Executrix and Trustee of the Estate of Gurston Rosenfeld, Global Communications Limited and Imagineering Limited (defendants by counterclaim)

(Suit No. CI 86-01-11103)

Indexed As: Morton et al. v. Asper et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Morse, J.

February 22, 1991.

Summary:

The action arose out of an alleged agree­ment made in 1984 between the parties, affecting their corporate relationship in Global Ventures Western Ltd. The plaintiffs, inter alia, sought to enforce the alleged agreement. The defendants denied the exis­tence of the agreement and counterclaimed, inter alia, for dissolution of Global.

The Manitoba Court of Queen's Bench, in a decision reported in 62 Man.R.(2d) 1, dismissed the plaintiffs' action, holding that there was no enforceable contract. The court allowed the counterclaim in part. The court refused to dissolve Global, but ordered a sale of shares by auction to rearrange the corpo­rate relationship. The defendants applied to tax their costs.

The Manitoba Court of Queen's Bench fixed the costs and disbursements of the defendants.

For reports of earlier proceedings in this case - see 49 Man.R.(2d) 167; 55 Man.R.(2d) 207; 55 Man.R.(2d) 61.

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Employment of special or additional counsel - The parties were involved in complicated commercial litigation with numerous important issues - The defen­dants' counterclaim was allowed in part, the plaintiffs' claim dismissed - The defendants Asper claimed generally for three counsel for each day of trial - Occa­sionally, when only one or two counsel were present, a claim was made only for the number in attendance - The Manitoba Court of Queen's Bench held that the attendance of three counsel at trial was necessary - However, the court allowed the tariff allowance of $700 per one-half day only to one counsel - Second counsel was allowed two-thirds of the fee allowed for first counsel and third counsel allowed one-third of the fee of first counsel - The court made no allowance for amounts claimed respecting associates, students and legal assistants - See paragraphs 22 to 25.

Practice - Topic 7082

Costs - Party and party costs - Witness fees and costs of preparation for trial - Preparation for trial - The parties were involved in complicated commercial litiga­tion with numerous important issues - The defendants' counterclaim was allowed in part - The plaintiffs' claim was dismissed - The defendants Asper claimed substantial prep­aration fees - The Manitoba Court of Queen's Bench held that justice required an increase in fees allowed by the tariff both for pretrial preparation as well as for prep­aration for trial - The court further stated that in Manitoba time spent was only a guide to the proper amount of fees to be allowed - See paragraphs 12 to 21.

Practice - Topic 7138

Costs - Party and party costs - Disburse­ments - Computer research - In a long complicated trial the Manitoba Court of Queen's Bench allowed a disbursement of $6,079.01 for "computer and search fees" - The court stated "I think the use of computers in long trials is necessary and should be encouraged" - See paragraph 27.

Practice - Topic 7146

Costs - Party and party costs - Disburse­ments - Trial transcripts - In a compli­cated trial the Manitoba Court of Queen's Bench allowed as a disbursement the cost of daily trial transcripts - See paragraph 27.

Practice - Topic 7146

Costs - Party and party costs - Disburse­ments - Trial transcripts - Discovery transcripts - In a complicated trial the Manitoba Court of Queen's Bench allowed as a disbursement the cost of discovery transcripts, including the cost of extra copies, which the court found reasonable and necessary - See paragraph 27.

Practice - Topic 7604

Costs - Taxation of costs - Bill of costs - The parties were involved in complicated commercial litigation with numerous im­portant issues - The plaintiffs unsuccess­fully claimed damages for breach of an alleged agreement - The principal asset respecting the struggle for control between the parties was worth over $300 million - Discovery required 38 days, the trial 63 days - There were numerous pretrial motions and cross-examination on affi­davits - The court refused to sever the issues of liability and damages, thereby increasing the complexity and length of the trial - The Manitoba Court of Queen's Bench held that it was appropriate and reasonable to award global amounts, rather than reviewing the Bill of Costs in detail - See paragraphs 10 to 11.

Practice - Topic 7641

Costs - The tariffs - General - The Manitoba Court of Queen's Bench stated that "in establishing the present tariff ..., it was not the intention of the court to set either a minimum or a maximum level for costs. Costs are always in the discretion of the court, although, ... such discretion must be exercised judicial­ly. There may be actions where not even the minimum tariff ... should be awarded. ... there may be actions in which the costs prescribed by the tariffs should be increased. Nevertheless, the costs permitted by the present tariffs were substantially increased over the tariffs which previously existed ... and it is only in excep­tional cases that costs in excess of those permitted by the tariffs should be allowed ..." - See paragraph 9.

Statutes Noticed:

Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 96(1) [para. 4].

Rules of Court (Man.), Queen's Bench Rules, rule 57.01(1) [para. 5]; rule 57.01(3) [paras. 5-6]; rule 57.01(4), rule 57.01(6) [para. 5].

Counsel:

R.B. McNicol, Q.C., for the plaintiffs;

W.C. Kushneryk, Q.C., for the defendants, Israel H. Asper, Canwest Communica­tions Corporation, Canwest Communica­tions Holdings Inc. and Canwest Com­munications Enterprises Inc.;

D.B.N. Ramsay, for the defendant, Can­west Broadcasting Ltd.;

R.B. Goodwin, for the defendants, Peter M. Liba, Peli Ventures Inc., Donald C. Brinton and Brinco Media Associates Ltd.

This matter was heard before Morse, J., of the Manitoba Court of Queen's Bench, Win­nipeg Centre, whose decision was delivered on February 22, 1991.