Superior Court of Justice - Ontario

B E T W E E N:

Daniel Irmya, Hilton P. Mijovick in trust, Community Counts Foundation/David Walsh in trust Plaintiffs

• and -

Hilton P. Mijovick, Geoff Pollock & Associates, Nisha Subba, Barrister & Solicitor, Ian Mackay Thompson, Estate Trustee for Madeline Margaret Field Defendants

BEFORE: F.L. Myers J.

READ: August 19, 2016

COSTS endorsement

[1] By endorsement dated July 15, 2016, reported at 2016 ONSC 4629, the court dismissed this action under Rule 2.1 as being frivolous, vexatious, or an abuse of process on its face. The court invited written submissions on costs. Submissions were delivered on behalf of the defendants Hilton P. Mijovick, Geoff Pollock & Associates and Nisha Subba, and Ian Mackay Thompson, Estate Trustee for the Estate of Madeline Margaret Field. Although Mr. Irmya delivered written submissions on the merits, he chose not to deliver submissions on costs.

[2] The plaintiff held himself out as “spiritual advisor” who sought to bring “business solutions” to the elderly, infirm, and financial challenged Mr. Mijovick. Mr. Irmya proposed to “help” Mr. Mijovick by buying his condominium for $1.85 million (or less) instead of the $2.375 million for which it was ultimately sold on the open market. This claim, in which Mr. Irmya has purported to make Mr. Mijovick both a plaintiff and defendant, is principally a claim against the lawyers who assisted Mr. Mijovick fend off the spiritual advisor’s avaricious scheme and guided Mr. Mijovick to a sale of his condominium at fair market value.

[3] Mr. Irmya delivered a thick motion record to support his claim. I was not able use his evidence in assessing the Rule 2.1 criteria on the face of the pleadings. But I can use the evidence in assessing costs. Mr. Irmya’s communications are replete with self-aggrandizement. He also made extortionary threats to sue the lawyers personally unless he was paid money. There was not a shred of evidence in Mr. Irmya’s thick material establishing any basis for the claims that he was making against the lawyers opposite or against Mr. Mijovick and the estate of his late spouse. Mr. Irmya’s advances were plainly rejected by counsel. They recognized that while Mr. Irmya was singing a clergyman’s tune, he was actually trying to buy the condominium for a song. Mr. Irmya planned to flip the condominium for personal gain for himself and colleagues with whom he was importing anti-cancer juice for sale in Canada.

[4] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[5] Costs are typically ordered on a “partial indemnity” basis. That means that in the ordinary course, a successful litigant is entitled to have only portion of her costs paid by the other side. Costs can be ordered on a higher “substantial indemnity” basis in an exceptional case where a party commits reprehensible misconduct in the litigation. Costs calculated on a substantial indemnity basis require the unsuccessful party to pay most, but still not quite all of the successful party’s legal costs. It is the rarest of case where parties to litigation are ordered to completely indemnify other parties for all of their legal costs. Costs on a “full indemnity” basis are exceptional among the exceptional.

[6] I agree with the following passage written by Skaricka J. in De Cruz Lee v. Lee, 2015 ONSC 2012:

[29] Self-represented litigants whose aim it is to protract court proceedings to force the other side to expend significant resources on legal costs due to scurrilous allegations that are without any evidentiary foundation and are entirely irrelevant to the issue before the Court will meet the hammer of a cost’s award. In our resource strapped court system, there must be deterrence against such conduct that not only penalizes the opposing party but also penalizes those litigants who have genuine claims to bring before a court but must have their justice delayed due to Court time being spent on this type of litigation,

[7] The defendant Thompson was counsel to the Estate of Ms. Field. Mr. Irmya accused Mr. Thompson of conspiracy and fraud in his notice of action. Mr. Thompson was not involved in any negotiations or communications with Mr. Irmya before Mr. Irmya brought his claim. Mr. Irmya used his scurrilous allegations as a basis to try to bring a Master’s motion to tie up the proceeds of the condominium sale which were under Mr. Thompson’s control. I find that this is an exceptional case even among Rule 2.1 cases which are all exceptional to some degree. Mr. Thompson was not Mr. Irmya’s lawyer. He owed Mr. Irmya no duties. Mr. Irmya made unwarranted, horrible allegations against Mr. Thompson without cause and for completely self-serving purposes. In my view, this is a case for full indemnity costs. The estate of Ms. Field should not be out of pocket one penny due to Mr. Irmya’s misconduct. Mr. Thompson is entitled to be fully indemnified for his costs and disbursements by the estate and by Mr. Irmya. The estate shall have a right of indemnity against Mr. Irmya in the event that it pays anything on account of costs to Mr. Thompson or his counsel. Mr. Irmya shall have no such right of indemnity against the estate. I have reviewed Mr. Thompson’s Costs Outline and find it to be quite reasonable. I therefore fix the costs to which he is entitled at $9,865.19 inclusive of disbursements and taxes. Mr. Irmya shall pay costs in that amount to Mr. Thompson forthwith.

[8] Mr. Mijovick and his litigation counsel bore the brunt of Mr. Irmya’s vexatiousness. Mr. Irmya sent multiple letters, emails, and incessant voicemail messages to Mr. Mijovick’s counsel. In one 12 hour period, counsel says Mr. Irmya left as many as 30 voicemail messages. Mr. Irmya preyed upon Mr Mijovick and harassed his counsel. He forced unnecessary costs on Mr. Mijovick by naming him both as plaintiff and defendant and then delivering his thick motion record to try to claim the right to act on Mr. Mijovick’s behalf in the proceedings, among other things. Mr. Irmya made extortionary threats to Mr. Mijovick’s counsel as well. In all, it is fair and reasonable for Mr. Irmya to pay forthwith costs to Mr. Mijovick on a full indemnity basis in the amount of $13,615.94 inclusive of disbursements and taxes.

[9] Mr. Irmya sued the defendants Geoff Pollock & Associates and its employee Nisha Subba for providing commercial legal advice to Mr. Mijovick in relation to the sale of his condominium. Mr. Irmya blames them for Mr. Mijovick’s decision to decline to deal with Mr. Irmya. He has made scurrilous allegations against these defendants and threatens to bring further proceedings against them to punish them. The lawyers owed duties to Mr. Mijovick and appear to have carried out their duties to protect their vulnerable client from predation. The lawyers owed no duties to Mr. Irmya. In all, it is fair and reasonable for Mr. Irmya to pay forthwith costs to Geoff Pollock & Associates and Nisha Subba on a full indemnity basis in the amount of $6,706.55 inclusive of disbursements and taxes.

[10] The court dispenses with any requirement for the plaintiff to approve the form or content of the formal order.

F.L. Myers J. Date: August 19, 2016