



COURT OF APPEAL
    FOR ONTARIO

CITATION: Bank of Nova Scotia v. Diemer, 2014 ONCA 851

DATE: 20141201

DOCKET: C58381

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

BETWEEN

The Bank of Nova Scotia

Plaintiff (Respondent)

and

Daniel A. Diemer o/a Cornacre Cattle Co.

Defendant (Respondent)

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

Heard: June 10, 2014

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated January 22, 2014, with reasons reported at
    2014 ONSC 365.

Pepall J.A.:

[1]

The public nature of an insolvency which juxtaposes a debtors financial
    hardship with a claim for significant legal compensation focuses attention on
    the cost of legal services.

[2]

This appeal involves a motion judges refusal 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.

[3]

For the reasons that follow, I would dismiss the appeal.

Facts

(a)

Appointment of Receiver

[4]

The respondent, Daniel A. Diemer o/a Cornacre Cattle Co. (the debtor),
    is a cattle farmer.  The Bank of Nova Scotia (BNS) held security over his farm
    operations which were located near London, Ontario.  BNS and Maxium Financial
    Services Inc. were owed approximately $4.9 million (approximately $2 million
    and $2.85 million respectively).  BNS applied for the appointment of a receiver
    pursuant to s. 243(1) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3 (
BIA
)
and s. 101 of the
Courts of
    Justice Act
, R.S.O. 1990, c. 43
. 
    The debtor was represented by counsel and consented to the appointment.

[5]

On August 20, 2013, Carey J. granted the request and appointed PricewaterhouseCoopers
    Inc. (PWC or the Receiver) as receiver of the debtor.  The initial
    appointment order addressed various aspects of the receivership.  This included
    the duty of the debtor to cooperate with the Receiver and the approval of a
    sales process for the farm operations described in materials filed in court by BNS. 
    The order also contained a come-back provision allowing any interested party to
    apply to vary the order on seven days notice.

[6]

Paragraphs 17 and 18 of the appointment order, which dealt with the accounts
    of the Receiver and its counsel, stated:

17.     THIS COURT ORDERS that the Receiver and counsel to the
    Receiver shall be paid their reasonable fees and disbursements, in each case at
    their standard rates and charges, and that the Receiver and counsel to the
    Receiver shall be entitled to and are hereby granted a charge (the Receivers
    Charge) on the Property, as security for such fees and disbursements, both
    before and after the making of this Order in respect of these proceedings, and
    that the Receivers Charge shall form a first charge on the Property in
    priority to all security interests, trusts, liens, charges and encumbrances,
    statutory or otherwise, in favour of any Person, but subject to sections
    14.06(7), 81.4(4), and 81.6(2) of the BIA.

18.     THIS COURT ORDERS that the Receiver and its legal
    counsel shall pass its accounts from time to time, and for this purpose the
    accounts of the Receiver and its legal counsel are hereby referred to a judge
    of the Ontario Superior Court of Justice.

There is no suggestion that the materials filed in
    support of the request for the appointment of the Receiver provided specifics
    on the standard rates and charges referred to in para. 17 of the initial
    appointment order.

[7]

Counsel to the Receiver was Borden Ladner Gervais LLP (BLG) and the
    lead lawyer was Roger Jaipargas.  Mr. Jaipargas was called to the Ontario bar
    in 2000, practises out of BLGs Toronto office, and is an experienced and
    capable insolvency practitioner.  Among other things, at the time of the
    receivership, he was the Chair of the Insolvency Section of the Ontario Bar
    Association.

(b)

Receivers Activities

[8]

The activities of the Receiver and, to a certain extent, those of its
    counsel, were described in reports dated September 11 and October 15, 2013 filed
    in court by the Receiver.  Both reports were subsequently approved by the
    court.

[9]

The reports revealed that:

-

Following
    the granting of the initial appointment order, the Receiver entered into an
    agreement with the debtor pursuant to which the latter was to manage the
    day-to-day operations of the farm and the Receiver would provide oversight.

-

After
    the Receiver was appointed, the debtor advised the Receiver of an August 13,
    2013 offer he had received.  It had resulted from a robust sales process
    conducted by the debtor.  On learning of this offer, the Receiver negotiated an
    agreement of purchase and sale with the offeror for the purchase of the farm
    for the sum of $8.3 million.  The purchase price included 170 milking cows.

-

On
    September 17, 2013, the Receiver obtained, without objection from the debtor, a
    court order setting aside the sales process approved in the initial appointment
    order, approving the agreement of purchase and sale it had negotiated, and
    approving the Receivers September 11, 2013 report outlining its activities to
    date.

-

The
    agreement of purchase and sale required that over 150 cows be removed from the
    farm (not including the 170 milking cows that were the subject of the agreement
    of purchase and sale).  Complications relating to these cows and an additional
    60 cows which the debtor wanted to rent to increase his milking quota arose to
    which the Receiver and its counsel were required to attend.

-

The
    Receiver and BLG also negotiated an access agreement to permit certain property
    to remain on the farm after the closing date of the agreement of purchase and
    sale at no cost to the debtor.  Unbeknownst to the Receiver, the debtor then
    removed some of that property.

-

The
    Receiver and its counsel also had to consider numerous claims to the proceeds
    of the receivership by other interested creditors and an abandoned request by
    the debtor to change the venue of the receivership from London to Windsor.

[10]

After
    approximately two months, the debtor asked that the Receiver be replaced. 
    Accordingly, PWC brought a motion to substitute BDO Canada Ltd. as receiver and
    to approve its second report dated October 15, 2013.

(c)

Application to Approve Fees

[11]

The
    Receiver also asked the court to approve its fees and disbursements and those
    of its counsel including both of their estimates of fees to complete.

[12]

The
    Receivers fees amounted to $138,297 plus $9,702.52 in disbursements.  The fees
    reflected 408.7 hours spent by the Receivers representatives at an average
    hourly rate of $338.38.  The highest hourly rate charged by the Receiver was
    $525 per hour.  Fees estimated to complete were $20,000.

[13]

The
    Receivers counsel, BLG, performed a similar amount of work but charged
    significantly higher rates.  BLGs fees from August 6 to October 14, 2013 amounted
    to $255,955, plus $4,434.92 in disbursements and $33,821.69 in taxes for a
    total account of $294,211.61.  The fees reflected 397.60 hours spent with an
    average hourly rate of $643.75.  Mr. Jaipargass hours amounted to 195.30 hours
    at an hourly rate of $750.00.  The rates of the other 10 people on the account
    ranged from $950 per hour for a senior lawyer to $195 for a student and $330
    for a law clerk.

[14]

Fees
    estimated to complete were $20,000.

[15]

In
    support of the request for approval of both sets of accounts, the Receiver
    filed an affidavit of its own representative and one from its counsel, Mr. Jaipargas.

[16]

As
    is customary in receiver fee approval requests, the Receivers representative stated
    that, to the best of his knowledge, the rates charged by its counsel were
    comparable to the rates charged by other law firms for the provision of similar
    services and that the fees and disbursements were fair and reasonable in the
    circumstances.

[17]

In
    his affidavit, Mr. Jaipargas attached copies of BLGs accounts and a summary of
    the hourly rates and time spent by the eleven BLG timekeepers who worked on the
    receivership. The attached accounts included detailed block descriptions of the
    activities undertaken by the BLG timekeepers with total daily aggregate hours
    recorded.  Usually the entries included multiple tasks such as e-mails and
    telephone calls.  Time was recorded in six minute increments.  Of the over 160 docket
    entries, a total of 11 entries reflected time of .1 (6 minutes) and .2 (12
    minutes).

[18]

On
    October 23, 2013, the motion judge granted a preliminary order.  He ordered
    that:

·

BDO Canada Ltd. be substituted as receiver;

·

PWCs fees and disbursements be approved;

·

the Receivers October 15, 2013 report and the activities of the Receiver
    set out therein be approved;

·

$100,000 of BLGs fees be approved; and

·

the determination of the approval of the balance of BLGs fees
    and disbursements be adjourned to January 3, 2014.

[19]

Prior
    to the January return date, the debtor filed an affidavit of a representative
    from his law firm.  The affiant described the billing rates of legal
    professionals located in the cities of London and Windsor, Ontario.  These
    rates tended to be significantly lower than those of BLG.  For example, the
    highest billing rate was $500 for the services of a partner called to the bar
    in 1988.  Mr. Jaipargas replied with an affidavit that addressed Toronto rates
    in insolvency proceedings in Toronto with which BLGs rates compared favourably. 
    He also revised BLGs estimate to complete to $30,000.

Motion Judges Decision

[20]

On
    January 3, 2014, the motion judge heard the motion relating to approval of the
    balance of BLGs fees and disbursements.  He refused to grant the requested fee
    approval and provided detailed reasons for his decision dated January 22, 2014.

[21]

In
    his reasons, the motion judge considered and applied the principles set out in
Re
    Bakemates International Inc.
(2002),
    164 O.A.C. 84 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 460
(also referred to as
Confectionately Yours Inc., Re
);
BT-PR Realty
    Holdings Inc. v. Coopers & Lybrand
(1997), 29 O.T.C. 354 (S.C.); and
Federal
    Business Development Bank v. Belyea
(1983), 44 N.B.R. (2d) 248 (C.A.).  The
    motion judge considered the nature, extent and value of the assets handled, the
    complications and difficulties encountered, the degree of assistance provided
    by the debtor, and the cost of comparable services.

[22]

The
    motion judge took into account the challenges identified by the Receiver in
    dealing with the debtor.  However, he found that the debtor had co-operated and
    that there was little involvement by the Receiver and counsel that required
    either day-to-day management or identification of a potential purchaser.

[23]

He
    noted, at para. 17 of his reasons, that although counsel for the debtor took
    specific issue with BLG counsels rates: I glean from submissions that the
    thrust of his argument evolved from a complaint about the rates being charged
    to an overall dispute of the unreasonableness of the entirety of the fees (and
    by extension  the hours) submitted for reimbursement.

[24]

The
    motion judge considered the hourly rates, time spent and work done.  He noted
    that the asset was a family farm worth approximately $8.3 million and that the
    scope of the receivership was modest.  In his view, the size of the
    receivership estate should have some bearing on the hourly rates.  He determined
    that the amount of counsels efforts and the work involved was disproportionate
    to the size of the receivership.  After the size of the estate became known,
    the usual or standard rates were too high.  He expressly referred to paras. 17
    and 18 of the initial appointment order.

[25]

The
    motion judge also took issue with the need for, and excessive work done by,
    senior counsel on routine matters.  He rejected the Receivers opinion
    endorsing its counsels fees, found that the number of hours reflected a significant
    degree of inefficiency, and that some of the work could have been performed at
    a lower hourly rate.  He concluded: I have concerns about the fees claimed
    that involve the scope of work over the course of just over two months in what
    appears to be a relatively straightforward receivership.  Frankly, the rates
    greatly exceed what I view as fair and reasonable.

[26]

He
    acknowledged that there were several methods to achieve what he believed to be
    a just and reasonable amount including simply cutting the overall number of
    hours billed.  Instead, so as to reduce the amount claimed, he adopted the
    average London rate of $475 for lawyers of similar experience and expertise as shown
    in the affidavit filed by the debtor.  He also expressly limited his case to
    the facts at hand, noting that his reasons should not be construed as saying
    that Toronto rates have no application in matters in the Southwest Region.

[27]

The
    motion judge concluded that BLGs fees were nothing short of excessive.  He
    assessed them at $157,500 from which the $100,000 allowed in his October 23,
    2013 order was to be deducted.  He also allowed disbursements of $4,434.92 and
    applicable HST.

Grounds of Appeal

[28]

The
    appellant advances three grounds of appeal.  It submits that the motion judge
    erred: (1) by failing to apply the clear provisions of the appointment  order
    which entitled BLG to charge fees at its standard rates; (2) by reducing BLGs
    fees in the absence of evidence that the fees were not fair and reasonable; and
    (3) by making unfair and unsupported criticisms of counsel.

Burden of Proof

[29]

The
    receiver bears the burden of proving that its fees are fair and reasonable:
HSBC
    Bank Canada v. Lechier-Kimel
, 2014 ONCA
    721, at para. 16 and
Bakemates
,
    at para. 31
.

Analysis

(a)     Appointment of a Receiver

[30]

Under
    s. 243(1) of the
BIA
,
the court may appoint a receiver and
    under s. 243(6), may make any order respecting the fees and disbursements of
    the receiver that the court considers proper.  Similarly, s.101 of the
Courts
    of Justice Act
provides for the appointment of a receiver and that the appointment
    order may include such terms as are considered just.  As in the case under
    appeal, the initial appointment order may provide for a judicial passing of
    accounts.  Section 248(2) of the
BIA
also permits the Superintendent
    of Bankruptcy, the debtor, the trustee in bankruptcy or a creditor to apply to
    court to have the receivers accounts reviewed.  The court also relies on its
    supervisory role and inherent jurisdiction to review a receivers requests for
    payment:
Bakemates
, at para. 36 and Kevin P. McElcheran,
Commercial
    Insolvency in Canada
, 2d ed. (Markham: LexisNexis, 2011), at pp. 185-186.

[31]

The
    receiver is an officer of the court:
Bakemates
, at para. 34.  As
    stated by McElcheran, at p.186:

The receiver, once appointed, is said to be a fiduciary for
    all creditors of the debtor.  The term fiduciary to describe the receivers
    duties to creditors reflects the representative nature of its role in the
    performance of its duties.  The receiver does not have a financial stake in the
    outcome.  It is not an advocate of any affected party and it has no client.  As
    a court officer and appointee, the receiver has a duty of even-handedness that
    mirrors the courts own duty of fairness in the administration of justice. 
    [Footnotes omitted.]

(b)     Passing of a Receivers
    Accounts

[32]

In
Bakemates
, this court described the purpose of the passing of a
    receivers accounts and also discussed the applicable procedure.  Borins J.A. stated,
    at para. 31, that there is an onus on the receiver to prove that the compensation
    for which it seeks approval is fair and reasonable.  This includes the
    compensation claimed on behalf of its counsel.  At para. 37, he observed that
    the accounts must disclose the total charges for each of the categories of
    services rendered.  In addition:

The accounts should be in a form that can be easily understood
    by those affected by the receivership (or by the judicial officer required to
    assess the accounts) so that such person can determine the amount of time spent
    by the receivers employees (and others that the receiver may have hired) in
    respect to the various discrete aspects of the receivership.

[33]

The
    court endorsed the factors applicable to receivers compensation described by
    the New Brunswick Court of Appeal in
Belyea
:
Bakemates
, at
    para. 51
.  In
Belyea
, at para. 9, Stratton J.A. listed the
    following factors:

·

the nature, extent and value of the assets;

·

the complications and difficulties encountered;

·

the degree of assistance provided by the debtor;

·

the time spent;

·

the receivers knowledge, experience and skill;

·

the diligence and thoroughness displayed;

·

the responsibilities assumed;

·

the results of the receivers efforts; and

·

the cost of comparable services when performed in a prudent and
    economical manner.

These factors constitute a useful guideline but are not
    exhaustive:
Bakemates
, at para. 51.

[34]

In
    Canada, very little has been written on professional fees in insolvency
    proceedings: see Stephanie Ben-Ishai and Virginia Torrie, A Cost Benefit
    Analysis: Examining Professional Fees in
CCAA
Proceedings in Janis P.
    Sarra, ed.,
Annual Review of Insolvency Law
(Toronto: Carswell, 2010)
    141, at p.151.

[35]

Having
    said that, it is evident that the fairness and reasonableness of the fees of a
    receiver and its counsel are the stated lynchpins in the
Bakemates
analysis.
     However, in actual practice, time spent, that is, hours spent times hourly
    rate, has tended to be the predominant factor in determining the quantum of
    legal fees.

[36]

There
    is a certain irony associated with this dichotomy.  A person requiring legal
    advice does not set out to buy time.  Rather, the object of the exercise is to
    buy services. Moreover, there is something inherently troubling about a billing
    system that pits a lawyers financial interest against that of its client and
    that has built-in incentives for inefficiency.  The billable hour model has
    both of these undesirable features.

(c)     The Rise and Dominance of
    the Billable Hour

[37]

For
    many decades now, the cornerstone of legal accounts and law firms has been the
    billable hour.  It ostensibly provides an objective measure for both clients
    and law firms.  For the most part, it determines the quantum of fees.  From an
    internal law firm perspective, the billable hour also measures productivity and
    is an important tool in assessing the performance of associates and partners
    alike.

[38]

The
    billable hour traces its roots to the mid-20th century.  In 1958, the American Bar
    Association (ABA)s Special Commission on the Economics of Law Practice
    published a study entitled The 1958 Lawyer and his 1938 Dollar.  The study noted
    that lawyers incomes had not kept pace with those of other professionals and
    recommended improved recording of time spent and a target of 1,300 billable hours
    per year to boost lawyers profits: see Stuart L. Pardau, 
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, at pp. 4-5.  By 2002, in its Commission on Billable Hours, the
    ABA revised its proposed expectation to 2,300 hours docketed annually of which
    1,900 would represent billable work: see Pardau, at p. 2.  And that was in
    2002.

[39]

Typically,
    a lawyers record of billable hours is accompanied by dockets that record and
    detail the time spent on a matter.  In theory, this allows for considerable
    transparency.  However, docketing may become more of an art than a science, and
    the objective of transparency is sometimes elusive.

[40]

This
    case illustrates the problem.  Here, the lawyers provided dockets in blocks of
    time that provide little, if any, insight into the value provided by the time
    recorded.  Moreover, each hour is divided into 10 six-minute segments, with six
    minutes being the minimum docket.  So, for example, reading a one line e-mail
    could engender a 6 minute docket and associated fee.  This segmenting of the
    hour to be docketed does not necessarily encourage accuracy or docketing
    parsimony.

(d)

Fees in Context of Court Appointed Receiver

[41]

The
    cost of legal services is highlighted in the context of a court-supervised
    insolvency due to its public nature.  In contrast, the cost of putting together
    many of the transactions that then become unravelled in court insolvency
    proceedings rarely attract the public scrutiny that professional fees in
    insolvencies do.  While many of the principles described in these reasons may
    also be applicable to other areas of legal practice, the focus of this appeal
    is on legal fees in an insolvency.

[42]

Bilateral
    relationships are not the norm in an insolvency.  In a traditional solicitor/client
    relationship, there are built-in checks and balances, incentives, and, frequently,
    prior agreements on fees.  These sorts of arrangements are less common in an
    insolvency.  For example, a receiver may not have the ability or incentive to
    reap the benefit of any pre-agreed client percentage fee discount of the sort
    that is incorporated from time to time into fee arrangements in bilateral
    relationships.

[43]

In
    a court-supervised insolvency, stakeholders with little or no influence on the
    fees may ultimately bear the burden of the largesse of legal expenditures.  In
    the case under appeal, the recoveries were sufficient to discharge the debt
    owed to BNS.  As such, it did not bear the cost of the receivership.  In
    contrast, had the receivership costs far exceeded BNSs debt recovery such that
    in essence it was funding the professional fees, BNS would hold the economic
    interest and other stakeholders would be unaffected.

[44]

In
    a receivership, the duty to monitor legal fees and services in the first
    instance is on the receiver.  Choice of counsel is also entirely within the
    purview of the receiver.  In selecting its counsel, the receiver must consider
    expertise, complexity, location, and anticipated costs. The responsibility is
    on the receiver to choose counsel who best suits the circumstances of the
    receivership.  However, subsequently, the court must pass on the fairness and
    reasonableness of the fees of the receiver and its counsel.

[45]

In
    my view, it is not for the court to tell lawyers and law firms how to bill. That
    said, in proceedings supervised by the court and particularly where the court
    is asked to give its
imprimatur
to the legal fees requested for
    counsel by its court officer, the court must ensure that the compensation
    sought is indeed fair and reasonable.  In making this assessment,
all
the
Belyea
factors, including time spent, should be considered.  However,
    value provided should pre-dominate over the mathematical calculation reflected
    in the hours times hourly rate equation.  Ideally, the two should be synonymous,
    but that should not be the starting assumption. Thus, the factors identified in
Belyea
require a consideration of the overall value contributed by the
    receivers counsel.  The focus of the fair and reasonable assessment should be
    on what was accomplished, not on how much time it took.  Of course, the
    measurement of accomplishment may include consideration of complications and
    difficulties encountered in the receivership.

[46]

It
    is not my intention to introduce additional complexity and cost to the
    assessment of legal fees in insolvency proceedings. All participants must be
    mindful of costs and seek to minimize court appearances recognizing that the
    risk of failing to do so may be borne on their own shoulders.

(e)

Application to This Case

[47]

Applying
    these principles to the grounds raised, I am not persuaded that the motion
    judge erred in disallowing counsels fees.

[48]

The
    initial appointment order stating that the compensation of counsel was to be
    paid at standard rates and the subsequent approval of the Receivers reports do
    not oust the need for the court to consider whether the fees claimed are fair and
    reasonable.

[49]

As
    stated in
Bakemates
, at para. 53, there may be cases in which the fees
    generated by the hourly rates charged by a receiver will be reduced if the
    application of one or more of the
Belyea
factors so requires. 
    Furthermore, although they would not have been determinative in any event,
    there is no evidence before this court that the standard rates were ever
    disclosed prior to the appointment of the receiver.  In addition, as stated,
    while the receiver and its counsel may be entitled to charge their standard
    rates, the ultimate assessment of what is fair and reasonable should dominate
    the analysis.  I would therefore reject the appellants argument that the
    motion judge erred in disallowing BLGs fees at its standard rates.

[50]

I
    also reject the appellants argument that the motion judge erred in fact in
    concluding that counsels fees were not fair and reasonable.

[51]

In
    this regard, the appellant makes numerous complaints.

[52]

The
    appellant submits that the motion judge made a palpable and overriding error of
    fact in finding that the debtor was cooperative.  The appellant relies on the
    contents of the Receivers two reports in support of this contention.  The first
    report states that on the date of the initial appointment order, August 20,
    2013, the Receiver became aware of an offer to purchase the farm dated August 13,
    2013 and reviewed the offer with the debtors counsel.  The report goes on to
    state that the debtor was not opposed to the Receiver completing that transaction
    and seeking the courts approval of it.  The second report does detail some
    issues with the debtor such as the movement of certain property and cows to two
    farms for storage, even though the Receiver had arranged for storage with the
    purchaser at no cost to the Receiver or the debtor, and the leasing by the
    debtor of 60 additional cows to increase milk production.

[53]

While
    there are certain aspects of the second report indicating that some negotiation
    with the debtor was required, based on the facts before him, it was open to the
    motion judge to conclude, overall, that the debtor cooperated.  The Receiver and
    its counsel never said otherwise.  Furthermore, this finding was made in the
    context of the debtor having agreed to continue to operate the farm pursuant to
    an August 30, 2013 agreement and in the face of little involvement of the
    Receiver and its counsel in the day-to-day management of the farm.  Indeed, in
    the first report, the Receiver notes the debtors willingness to carry on the farming
    operations on a day-to-day basis.

[54]

In
    my view, it was also appropriate for the motion judge to question why a senior
    Toronto partner had to attend court in London to address unopposed motions and,
    further, to find that the scope of the receivership was modest.  Indeed, in his
    reasons at para. 40, the motion judge wrote that, in the proceedings before
    him, counsel for the Receiver acknowledged that the receivership was not
    complex.  Based on the record, it was open to him to conclude that the
    receivership involved the divestment of the farm and assets with some modest
    ancillary work.

[55]

As
    the motion judge noted at para. 20, the fixing of costs is not an unusual task
    for the court.  Moreover, he was fully familiar with the receivership and was
    well-placed to assess the value generated by the legal services rendered.  He properly
    considered the
Belyea

factors.  While a different judge might
    have viewed the facts, including the debtors conduct, differently, the motion
    judge made findings of fact based on the record and is owed deference.  In my
    view, the appellant failed to establish any palpable and overriding error.

[56]

Nor
    did the motion judge focus his decision on what remained to the debtor after
    the creditors, the Receiver and Receivers counsel had been paid, as alleged by
    the appellant.  In para. 34 of his reasons, which is the focus of the
    appellants complaint on this point, the motion judge correctly considered the
    size of the estate.  He stated that he was persuaded that the amount of counsels
    efforts and work involved may be disproportionate to the size of the
    receivership.  After the size of the estate became known, he concluded that
    the standard rates of counsel were too high relative to the size.  As
    observed in
Belyea
, at para. 9, the nature, extent and value of an
    estate is a factor  to be considered in assessing whether fees are fair and
    reasonable.  As such, along with counsels knowledge, experience and skill and
    the other
Belyea
factors, it is a relevant consideration.

[57]

In
    addition, the motion judge was not bound to accept the affidavit evidence filed
    by BLG or the two Receiver reports as determinative of the fairness and
    reasonableness of the fees requested.  It is incumbent on the court to look to
    the record to assess the accounts of its court officer, but it is open to a
    motion judge to draw inferences from that record.  This is just what the motion
    judge did.

[58]

Having
    said that, I do agree with the appellant that there were some unfair criticisms
    made of counsel.  There was no basis to state that counsel had attempted to
    exaggerate or had conducted himself in a disingenuous manner.  I also agree
    with the appellant that the Receiver and its counsel cannot be faulted for
    failing to bring the accounts forward for approval at an earlier stage.  Costly
    court appearances should be discouraged not encouraged.

[59]

I
    also agree with the appellant that it was inappropriate for the motion judge to
    adopt a mathematical approach and simply apply the rates of London counsel.  However,
    this was not fatal: the motion judges decision was informed by the factors in
Belyea
. 
    As he noted, he 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.  This is buttressed by the motion
    judges concluding comments, in para. 47 of his reasons, where 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
    have no application in matters in London or its surrounding areas.

[60]

While
    certain of the motion judges comments were unjustified, I am not persuaded
    that a different result should ensue.

Disposition

[61]

For
    the foregoing reasons, I would dismiss the appeal.  As agreed, the appellant
    shall pay the respondents costs of the appeal, fixed in the amount of $5,500,
    together with disbursements and all applicable taxes.

Released:

DEC -1 2014                                    Sarah E.
    Pepall J.A.

EAC                                                 I
    agree Alexandra Hoy A.C.J.O.

I
    agree E.A. Cronk J.A.


