Court File and Parties

COURT FILE NO.: CV-18-597479 HEARD: In Chambers

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthea Koon, Applicant AND: Lawyers Professional Indemnity Company, Respondent

BEFORE: Master P.T. Sugunasiri

COUNSEL: Lung, L., Counsel for the Respondent/Moving Party Koon, A., the Applicant/Responding Party in person

HEARD: In Chambers

costs decision

[1] In my Amended Reasons dated January 18, 2019, I allowed the parties to provide written costs submissions. Ms. Koon claims costs for what she characterizes as a wasteful, frivolous, misleading and embarrassing motion. Mr. Lung suggests that the motion was imperative not only to protect the reputation of counsel but to also remove the cloud placed over him by the improper allegations made in Koon’s Notice of Motion.

[2] Mr. Lung provided me with a costs outline and claims substantial indemnity costs of $6,198.34 plus some additional costs for his responding costs submissions. Ms. Koon provided me with her costs submissions with voluminous attachments, and reply, and asks me to fix an amount against the Respondent that discourages parties from “embarrassing the Court by providing wrong information.”

[3] Having regard to those submissions and the factors in Rule 57.01 of the Rules of Civil Procedure, I award costs to LawPro in the all-inclusive amount of $6800. Unfortunately, I find that even in these costs submissions Ms. Koon is continuing in the same vein as in her Notice of Motion by casting aspersions on counsel and trying to re-litigate the motion. As noted by Justice Lax in Re: Manning, 2006 CanLII 35631 (ONSC), “costs on the higher scale can be awarded as a form of chastisement and as a mark of the court’s disapproval of a litigant’s conduct. This is intended to punish as well as deter others from engaging in similar conduct…. Without discouraging the tenacious pursuit and advancement of serious claims of impropriety in a proper case.” (paras. 7-9) Ms. Koon’s continued conduct warrants an order of substantial indemnity costs.

I also consider that in many cases, the court discourages these types of interlocutory motions on the theory that any problems with the notice of motion can be addressed at the hearing. In those instances, costs are often not awarded to the moving party to dissuade interlocutory motions within interlocutory motions. Here, I can understand LawPRO and its counsel were anxious to have parts of the Notice of Motion struck. Ms. Koon should not have made bald allegations of fraud against colleagues at the bar on matters irrelevant to the Rule 59.06 motion. “A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was.”[^1] Mr. Lung also emphasizes the purpose of lifting the cloud on counsel. I regard this as related to the reputational issue alluded to above. While the chances of anyone seeing the notice of motion is slim, it does nevertheless put an improper cloud over counsel for LawPro, and over LawPro itself. Further, I take into consideration that there was a benefit of the motion to the advancement of the litigation. It narrowed the issues to be ultimately determined by the motions judge. One also hopes that the motion, and my costs award will deter parties from making irrelevant and prejudicial allegations against officers of the Court. Such conduct diminishes the profession and puts a stain on our justice system as a whole.

[4] For these reason, I order Ms. Koon to pay costs of $6800 payable within 60 days of today’s date.

Original signed

Master P. Tamara Sugunasiri

Date: March 8, 2019

[^1]: Joseph Hall.