Court File and Parties
Court File No.: CV-17-00575329-0000 Date: 2019-02-21 Superior Court of Justice - Ontario
Re: Vladimir Levine, Applicant And: Michael S. Deverett c.o.b.a. Deverett Law Offices, Respondent
Before: Mr. Justice A.J. O’Marra
Counsel: Mitchell Worsoff, for the Applicant Alvin Meisels, for the Respondent
Heard: December 5, 2018
Costs Endorsement
Background
1The applicant Vladimir Levine brought an application to obtain a declaration that he was the only client for the purpose of an accounts assessment of Michael S. Deverett, Deverett Law Offices, the respondent pursuant to s. 3 of the Solicitors Act. His application was dismissed. The respondent’s request that Mikhail Titkine, a co-signatory to the retainer agreement at issue, was also a client was granted. Costs were awarded to the respondent.
2The parties were invited to make submissions with respect to costs, together with their costs outline if an agreement could not be reached as between themselves. I have received the costs submissions of the applicant and respondent together with the respondent’s costs outline, but none from the applicant.
Positions of the Parties
3The respondent claims his costs on a substantial indemnity basis are $65,814.43, and on a partial indemnity basis $44,884.57, inclusive of HST and disbursements. However, requests that the applicant pay costs in the amount of $60,000.00 all-inclusive.
4The applicant, without submitting a costs outline, suggests that the respondent’s hours in preparation and drafting materials are inflated. Costs in this matter, even on a full scale basis should be no more than $15,000.00-$20,000.00.
5The respondent, a lawyer claims costs for his early involvement as self-represented during the applicant’s first attempt to bring his application in May 2016, and his subsequent motion to strike heard by Sanfilippo J. on January 16, 2018. He retained counsel to represent his interests in subsequent case conferences, as well as the hearing of the amended application. He relies on Fong v. Chan, [1999] OJ No. 4600 (O.C.A.) wherein the Court of Appeal held that self-represented lawyers are not precluded from recovering costs in litigation in which they are parties.
6In addition to the respondent’s direct involvement, the costs outline includes the time and participation of his counsel leading to the determination of this matter. In addition to the factums prepared, book of authorities, and attendance in his motion to strike before Sanfilippo J. there were cross-examinations of the applicant’s affiants and Titkine.
7The applicant claims that the respondent’s motion to strike was dismissed by Justice Sanfilippo which resulted in the amended application. The result was more amply described by the applicant as him having been successful “staving off the respondent’s motion to strike proceedings”. There was in the result partial success, and to that end costs should be adjusted accordingly.
Allegations of Misconduct
8In the applicant’s costs submissions counsel continues to advance allegations that the respondent was engaged in criminal conduct by allegedly assisting Titkine to extort monies from him. The respondent claims that the applicant continues to impugn his character and reputation and as such it should attract substantial indemnity costs because the applicant continues to ignore this court’s admonition that if he sought to rely on such allegations he should have pursued this matter in an action “setting out the full particulars of the allegations in order to permit Deverett and Titkine to respond appropriately in defence”.
9The respondent relies on Aba-Alkhail v. University of Ottawa, 2013 ONSC 6070 at para. 5, affirmed on appeal at 2013 ONCA 633 wherein the court held that unfounded allegations of improper conduct are capable of attracting substantial indemnity costs, particularly when the allegations are seriously prejudicial to the character or reputation of the individual. Here, the allegation continues to be made by the applicant that the respondent in his professional role acted improperly without the opportunity to defend against the allegations.
10Pursuant to s. 131(1) of the Courts of Justice Act, costs of and incidental to a proceeding are at the discretion of the court. The factors the court should consider in its exercise of discretion in the award of costs are set out in Rule 57 of the Rules of Civil Procedure. In the exercise of my discretion to award costs the court is to consider an amount that is fair and reasonable for the unsuccessful party to pay, (see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. 3d 291 (O.C.A.) at para. 26). In this matter the applicant has not provided an outline of costs or submitted what he would have considered fair and reasonable costs on the application, beyond his bald assertion that costs should be no more than $15,000.00 to $20,000.00.
Disposition
11In this matter, taking into account the applicant’s partial success there will be a reduction to the respondent’s requested costs, an award of $45,000.00 all in is fair and reasonable, payable within 30 days of the date of this endorsement.
A.J. O’Marra J.
Date: February 21, 2019