CITATION: Tsigirlash v. Walker, 2016 ONSC 4712
COURT FILE NO.: 13-54869
DATE: 2016-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
George Tsigirlash
Self-Represented Applicant
Applicant
- and -
George F. Walker Q.C.
Robert Macdonald, for the Respondent
Respondent
HEARD: December 15, 16 & 17, 2015
The Honourable Justice C.D. Braid
RULING ON COSTS
I. OVERVIEW
[1] George Tsigirlash retained George Walker to represent him on fraud charges. In August of 2013, their relationship broke down and Walker got off the record. Four months after Walker’s final account had been sent, Tsigirlash raised concerns and applied to assess those accounts.
[2] At trial before me, Tsigirlash claimed that Walker misappropriated a $20,000 cash retainer. He said that Walker was unprepared. He stated that Walker took steps in his criminal case without obtaining instructions. I found all of these claims to be untrue.
[3] This ruling addresses the costs of the application brought by Tsigirlash, which was dismissed (Tsigirlash v. Walker, 2016 ONSC 968). The nature of the allegations made by Tsigirlash impacts the scale of costs in this case. For the reasons that follow, I find that Walker is entitled to substantial indemnity costs in the amount of $50,000.
II. ANALYSIS
[4] Walker seeks full indemnity costs of $65,801.52; or, alternatively, substantial indemnity costs of $53,618.14. These costs include 167.19 hours by trial counsel, plus a small amount of time incurred by a senior counsel and a law clerk. Trial counsel was called to the bar in 2011, and his actual rate is $320 per hour.
[5] Despite being provided with additional time to file his own material, Tsigirlash has not responded to Walker’s costs submissions.
[6] In determining quantum, the court is to consider the factors set out in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as well as s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I have considered those factors.
[7] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.). The fixing of costs should reflect what the court views as a fair and reasonable amount that should be paid, rather than any exact measure of the actual costs to the successful litigant.
[8] The factual matrix of this case was complex. Tsigirlash made serious allegations of professional misconduct and misappropriation of funds, which were damaging to Walker’s reputation. These accusations were made public in the court file. If proven, there would have been grounds for the Law Society to become involved. This would have resulted in dramatic consequences to Walker.
[9] At trial, I found that these allegations were without merit. Tsigirlash’s evidence was self-serving, contradictory, illogical and wholly unreliable. He was evasive during cross-examination. He made statements under oath that were directly contradicted by court transcripts, documentary evidence or his own evidence.
[10] There were numerous procedural steps in this case. Preparation and court attendances on Walker’s behalf included the following:
a) Numerous affidavits were prepared;
b) Trial counsel reviewed transcripts of appearances in the criminal action and the LSUC complaint;
c) Trial counsel prepared a detailed Request to Admit;
d) The unique legal issues engaged in the assessment process required the preparation and filing of a factum and book of authorities;
e) Trial counsel brought a motion to dismiss the application, which led the court to direct the trial of an issue;
f) Counsel prepared for and attended the first trial date, which was adjourned at the request of Tsigirlash; and,
g) Counsel prepared for and attended the trial, which lasted three days. Trial counsel has tempered his Bill of Costs by claiming only half of his travel time for attending trial.
[11] Tsigirlash had counsel until shortly before trial, but represented himself at trial. Having had the benefit of counsel for the majority of the proceedings, it is reasonable to conclude that Tsigirlash was advised regarding the possibility of having to pay elevated costs because of the nature of the allegations made.
[12] In exceptional cases, elevated costs are available where the losing party has engaged in behaviour worthy of sanction: Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236 (C.A.), at para. 28. While substantial indemnity costs are an exception to the general rule, unsubstantiated allegations of dishonesty, illegality and conspiracy can attract an award of substantial indemnity costs: Réno-Dépôt Inc. v. Wonderland Commercial Centre Inc., 2008 ONCA 786, 2008 CarswellOnt 6888; A-C-H International Inc. v. Royal Bank (2005), 2005 CanLII 17769 (ON CA), 254 D.L.R. (4th) 327, 197 O.A.C. 227 ( C.A.), Susin v. Chapman, 2004 CanLII 13175, 2004 CarswellOnt 3055 (C.A.).
[13] Having reviewed the detailed Bill of Costs filed in this case, I find that the number of hours spent is reasonable and the rates claimed are commensurate with counsel’s experience. Walker incurred legitimate expenses in hiring a lawyer to defend himself against the unproven allegations of professional misconduct and misappropriation of funds. Such allegations must be made sparingly and only where there is a good foundation; otherwise, litigants face the consequences of substantial indemnity costs. Elevated costs are warranted in this case.
[14] Although Walker claims full indemnity costs, I am not satisfied that they are appropriate in this case. The substantial indemnity rate was calculated at 80 percent of counsel’s actual rate. I am satisfied that the costs sought are fair and reasonable.
III. CONCLUSION
[15] Tsigirlash shall pay costs to Walker on a substantial indemnity basis in the amount of $50,000, inclusive of taxes and disbursements. The costs are payable forthwith.
[16] In addition, the requirement to obtain Tsigirlash’s approval of the draft order is dispensed with. An order dismissing the application and granting the costs ordered by this ruling may be obtained by Walker without the approval of the draft order that would ordinarily be required.
Braid J.
Released: July 21, 2016
CITATION: Tsigirlash v. Walker, 2016 ONSC 4712
COURT FILE NO.: 13-54869
DATE: 2016-07-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
George Tsigirlash
Applicant
- and –
George F. Walker Q. C.
Respondent
RULING ON COSTS
CDB
Released: July 21, 2016